| Matter of Christian E. |
| 2009 NY Slip Op 09656 [68 AD3d 1109] |
| December 22, 2009 |
| Appellate Division, Second Department |
| In the Matter of Christian E., a Child Alleged to be a JuvenileDelinquent, Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Jane L. Gordon of counsel;James A. Gray, Jr., on the brief), for respondent.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal isfrom an order of disposition of the Family Court, Queens County (Lubow, J.), dated November18, 2008, which, upon a fact-finding order of the same court dated February 14, 2008, made aftera hearing, finding that the appellant had committed acts which, if committed by an adult, wouldhave constituted the crimes of sexual abuse in the second degree and sexual abuse in the thirddegree, adjudged him to be a juvenile delinquent and placed him on probation for a period of 12months with the directive, inter alia, that he perform community service.
Ordered that the appeal from so much of the order of disposition as placed the appellant onprobation for a period of 12 months is dismissed as academic, without costs or disbursements, asthe period of probation has expired (see Matter of Daniel R., 51 AD3d 933 [2008]); andit is further,
Ordered that the order of disposition is reversed insofar as reviewed, on the facts, withoutcosts or disbursements, the fact-finding order is vacated, the petition is dismissed, and the matteris remitted to the Family Court, Queens County, for further proceedings pursuant to FamilyCourt Act § 375.1.
After a fact-finding hearing, the Family Court found that, during a seventh-grade shop class,the appellant committed acts which, if committed by an adult, would have constituted the crimesof sexual abuse in the second degree and sexual abuse in the third degree.
An element of the crimes of sexual abuse in the second and third degrees is that one mustsubject another person to "sexual contact" (Penal Law §§ 130.55, 130.60). "Sexualcontact" is defined as "any touching of the sexual or . . . intimate parts of a personnot married to the actor for the purpose of gratifying sexual desire of either party" (Penal Law§ 130.00 [3]).
Here, in light of the testimony of a classmate that no part of the appellant's body wastouching the complainant's body during the subject incident, and in light of the complainant'stestimony that [*2]the appellant was not "putting pressure" on herbody during the incident, the credible evidence did not support a finding that the appellanttouched the complainant's sexual or intimate parts. Thus, we agree with the appellant that theFamily Court's determination was against the weight of the evidence (see Matter of AnthonyW., 51 AD3d 808, 810 [2008]; Matter of Jonathan Z., 8 AD3d 397, 398 [2004];Matter of Kyle O., 205 AD2d 541, 543 [1994]). Accordingly, we reverse the order ofdisposition insofar as reviewed, vacate the fact-finding order, and dismiss the juveniledelinquency petition (see CPL 470.20 [5]).
In light of our determination, we need not reach the appellant's remaining contentions.Mastro, J.P., Santucci, Chambers and Lott, JJ., concur.