In re Najee A.

Appellate Division of the Supreme Court of New York

In re Najee A.

26 A.D.3d 258, 809 N.Y.S.2d 80

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 21, 2006

StatusPublished

Cited by15 cases

This text of 26 A.D.3d 258 (In re Najee A.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Najee A., 26 A.D.3d 258, 809 N.Y.S.2d 80 (N.Y. Ct. App. 2006).

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Opinion

Order of disposition, Family Coiirt, New York County (Susan R. Larabee, J.), entered on or about November 16, 2004, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts, which, if committed by an adult, would constitute the crimes of sexual abuse in the first degree (two counts), forcible touching, and unlawful imprisonment in the second degree, and placed him on probation for a period of eighteen months, unanimously modified, on the law, to the extent of vacating the finding as to unlawful imprisonment and dismissing that count of the petition, and otherwise affirmed, without costs.

The court’s finding as to sexual abuse and forcible touching was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the court’s determinations concerning credibility. The sexual gratification element could be readily inferred from appellant’s [259]*259conduct, which included rubbing his clothed penis against the victim’s buttocks while attempting to pull down the victim’s pants (see e.g. Matter of Stephen F., 300 AD2d 52 [2002]; Matter of Joel H., 279 AD2d 266 [2001]). The court properly rejected appellant’s claim that the incident was merely a playful wrestling match.

As the presentment agency concedes, appellant is entitled to dismissal of the unlawful imprisonment count based upon the merger doctrine. Concur—Tom, J.P., Mazzarelli, Andrias, Nardelli and Malone, JJ.

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Order of disposition, Family Coiirt, New York County (Susan R. Larabee, J.), entered on or about November 16, 2004, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts, which, if committed by an adult, would constitute the crimes of sexual abuse in the first degree (two counts), forcible touching, and unlawful imprisonment in the second degree, and placed him on probation for a period of eighteen months, unanimously modified, on the law, to the extent of vacating the finding as to unlawful imprisonment and dismissing that count of the petition, and otherwise affirmed, without costs.

The court’s finding as to sexual abuse and forcible touching was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the court’s determinations concerning credibility. The sexual gratification element could be readily inferred from appellant’s [259]*259conduct, which included rubbing his clothed penis against the victim’s buttocks while attempting to pull down the victim’s pants (see e.g. Matter of Stephen F., 300 AD2d 52 [2002]; Matter of Joel H., 279 AD2d 266 [2001]). The court properly rejected appellant’s claim that the incident was merely a playful wrestling match.

As the presentment agency concedes, appellant is entitled to dismissal of the unlawful imprisonment count based upon the merger doctrine. Concur—Tom, J.P., Mazzarelli, Andrias, Nardelli and Malone, JJ.

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Bluebook (online)

26 A.D.3d 258, 809 N.Y.S.2d 80, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-najee-a-nyappdiv-2006.

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