| Matter of Shourik D. |
| 2009 NY Slip Op 06429 [65 AD3d 1042] |
| September 8, 2009 |
| Appellate Division, Second Department |
| In the Matter of Shourik D., a Person Alleged to be a JuvenileDelinquent, Appellant. |
—[*1] Christine Malafi, County Attorney, Central Islip, N.Y. (Jeffrey P. Tavel of counsel), forrespondent.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal isfrom an order of fact-finding and disposition of the Family Court, Suffolk County (Freundlich,J.), dated October 17, 2008, which, after a hearing, found that the appellant committed an actwhich, if committed by an adult, would have constituted the crime of sexual abuse in the firstdegree, adjudged him a juvenile delinquent, and placed him with the New York State Office ofChildren and Family Services for placement in a limited-secure facility for a period of 18months. By decision and order on motion dated October 31, 2008 [2008 NY Slip Op 88158(U)],as amended by decision and order on motion dated November 20, 2008 [2008 NY Slip Op89855(U)], this Court stayed enforcement of so much of the order as directed the appellant'splacement with the New York State Office of Children and Family Services for placement in alimited secure facility and directed that he be released to the care and custody of his fatherpending determination of this appeal.
Ordered that the order of fact-finding and disposition is modified, on the law and in theexercise of discretion, (1) by deleting the provision thereof finding that the appellant committedan act which, if committed by an adult, would have constituted the crime of sexual abuse in thefirst degree, and substituting therefore a provision finding that he committed an act which, ifcommitted by an adult, would have constituted the crime of sexual abuse in the third degree, and(2) by deleting the provision thereof placing the appellant with the Office of Children andFamily Services for placement in a limited-secure facility for a period of 18 months; as somodified, the order of fact-finding and disposition is affirmed, without costs or disbursements,and the matter is remitted to the Family Court, Suffolk County, for a new disposition.
By petition dated August 27, 2008, the then 12-year-old appellant was charged with havingcommitted an act which, if committed by an adult, would have constituted the crime of sexualabuse in the first degree (see Penal Law § 130.65 [1]). At the fact-finding hearing,the 17-year-old complainant testified that, after a physical therapy appointment, she encounteredthe appellant in a stairwell at a HIP Center in Suffolk County. The complainant testified that theappellant pulled down her shorts and grabbed her buttocks, while saying "nice," pursued her andthen attempted to touch her again in the "front," whereupon the complainant pushed him away.While there was some evidence of the presence of another male at the premises around that time,the complainant and her mother positively identified the appellant in court.
The Family Court credited the complainant's version of the incident. After fact-finding and[*2]dispositional hearings, the Family Court found that theappellant had committed the charged act, adjudicated him a juvenile delinquent, and placed himwith the New York State Office of Children and Family Services (hereinafter OCFS) forplacement in a limited-secure facility for a period of 18 months, despite a positive psychiatricreport recommending education and outpatient treatment, praising his 95 grade-point average inschool, and noting his strong family connections. We modify.
The appellant correctly contends on appeal that the evidence was legally insufficient tosupport the finding that he committed an act which, if committed by an adult, would haveconstituted the crime of sexual abuse in the first degree (see Penal Law § 130.65[1]). The presentment agency failed to adduce legally sufficient evidence that the appellantutilized "forcible compulsion" to commit the crime (Penal Law § 130.00 [8]; see Matter of Hector V., 45 AD3d503 [2007]; Matter of MichaelDD., 33 AD3d 1185, 1186 [2006]; Matter of Dakota EE., 209 AD2d 782, 783[1994]; People v Wakefield, 208 AD2d 783 [1994]). The acts proven, however, ifcommitted by an adult, would have constituted the lesser-included offense of sexual abuse in thethird degree (see Penal Law § 130.55; Matter of Rahmel S., 12 AD3d 681 [2004]; Matter of PhoenixG., 265 AD2d 554, 555 [1999]).
In light of these findings, the matter must be remitted to the Family Court, Suffolk County,for a new dispositional hearing to explore the "least restrictive available alternative" (Family CtAct § 352.2 [2] [a]), given the psychiatric report's recommendation, the isolated nature ofthis incident, and the appellant's strong family connections (see Matter of Brittenie K., 50 AD3d 1203, 1205-1206 [2008]; Matter of Kareem F., 17 AD3d362, 363 [2005]; Matter of LetishaD., 14 AD3d 455 [2005]). Fisher, J.P., Miller, Angiolillo and Balkin, JJ., concur.