In re Olivia YY.

209 A.D.2d 892, 619 N.Y.S.2d 212, 1994 N.Y. App. Div. LEXIS 11641

Opinion

Casey, J.

Appeal from an order of the Family Court of Fulton County (Jung, J.), entered August 24, 1993, which granted petitioner’s application, in a proceeding pursuant to Family Court Act article 10, to adjudicate respondent’s children to be abused.

Respondent contends that she cannot be found to have committed acts which constitute sexual abuse in the first degree in the absence of direct evidence that the conduct was for the purpose of gratifying sexual desire (see, Penal Law § 130.00 [3]). Respondent relies upon Matter of Michael M. (156 Misc 2d 98, 101), but in that case the parent conceded that he had touched his children as alleged and presented an innocent explanation for his conduct which the trial court found believable. Here, in contrast, respondent does not claim an innocent explanation for the conduct. Rather, she denies ever having engaged in the conduct. It is undisputed that there could be no justification or innocent explanation for the conduct respondent was found to have committed, which involved the deviate touching of her children’s genitalia. Considering the evidence as a whole, we conclude that the sexual gratification element can be inferred from the conduct itself (see, People v Estela, 136 AD2d 728, 729, lv denied 71 NY2d 895). As to respondent’s remaining claim concerning the weight of the evidence, we find no basis in the record to disturb Family Court’s assessment of the conflicting expert testimony (see, Matter of Esther CC., 194 AD2d 949, 951).

Mikoll, J. P., Crew III and Yesawich Jr., JJ., concur. Ordered that the order is affirmed, without costs.