In re Shamar D.

84 A.D.3d 605, 922 N.Y.S.2d 778

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 19, 2011
• Status: Published

Opinion

Order of disposition, Family Court, Bronx County (Robert R. Reed, J), entered on or about February 3, 2010, 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 attempted sexual abuse in the third degree, and placed him on supervised probation for a period of 18 months, unanimously reversed, on the law, without costs, and the petition dismissed.

While there is no dispute that the 11-year-old appellant inappropriately touched the 12-year-old complainant without her permission in a crowded school auditorium and that his behavior is deeply offensive, the evidence was insufficient to establish beyond a reasonable doubt that he was acting for the purpose of obtaining “sexual gratification” as required under the Penal Law (see Penal Law § 130.00 [3]; see also Matter of Keenan O., 273 AD2d 167 [2000], citing Matter of Clifton B., 271 AD2d 285 [2000]). Concur — Tom, J.P., Sweeny, Catterson, Acosta and Manzanet-Daniels, JJ.