In re Joel H.

279 A.D.2d 266, 718 N.Y.S.2d 347, 2001 N.Y. App. Div. LEXIS 33

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 4, 2001
• Status: Published

Opinion

Order of disposition, Family Court, New York County (Sheldon Rand, J.), entered on or about February 8, 1999, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed an act which, if committed by an adult, would constitute the crime of sexual abuse in the second degree, and placed him on probation for 18 months, upon terms and conditions that he attend a sexual abuse program and perform 100 hours of community service, unanimously affirmed, without costs.

The court’s finding was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis upon which to disturb the court’s determinations concerning credibility. The element of intent to obtain sexual gratification (Penal Law § 130.00 [3]) could be inferred from the totality of the circumstances, which included, inter alia, the 15-year-old appellant’s fondling of the 11-year-old complainant’s chest area as his accomplice held the complainant from behind and repeatedly rubbed his penis against the complainant’s buttocks (see, Matter of Kenny O., 276 AD2d 271). Contrary to appellant’s argument, the fact that this incident arose from the escalation of horseplay in a public swimming pool did not provide a credible innocent explanation for this clearly sexual conduct. Concur — Rosenberger, J. P., Nardelli, Ellerin, Wallach and Rubin, JJ.