Matter of Jabari I., 2011 NY Slip Op 08982 [90 AD3d 490]

Dcmbr 13, 2011

Appellate Division, First Department

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Tamara A. Steckler, The Legal Aid Society, New York (Elana E. Roffman of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Marta Ross of counsel), for presentment agency.

Order of disposition, Family Court, Bronx County (Allen G. Alpert, J.), entered on or about February 28, 2011, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed an act that, if committed by an adult, would constitute the crime of sexual abuse in the third degree, and placed him on supervised probation for a period of 18 months with mandatory sex offender counseling, unanimously reversed, on the law and the facts, without costs, and the petition dismissed.

The then-13-year-old complainant testified that the then-13-year-old appellant made rude sexual comments and gave her a quick slap on her buttocks in a classroom in which other students and their teacher were all present. Even if fully credited, this evidence was legally insufficient to establish beyond a reasonable doubt that appellant performed this highly offensive behavior “for the purpose of gratifying sexual desire” (Penal Law § 130.00 [3]; see Matter of Shamar D. , 84 AD3d 605 [2011]; Matter of Keenan O. , 273 AD2d 167 [2000]).

Regardless of whether the evidence was legally sufficient, we also conclude that the court’s finding was against the weight of the evidence. Concur—Mazzarelli, J.P., Andrias, Renwick, Freedman and Manzanet-Daniels, JJ..