| Matter of Ibn Abdus S. |
| 2012 NY Slip Op 00021 [91 AD3d 428] |
| Jnury 3, 2012 |
| Appellate Division, First Department |
| In the Matter of Ibn Abdus S., a Person Alleged to be a JuvenileDelinquent, Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Sharyn Rootenberg of counsel), forpresentment agency.
Order of disposition, Family Court, Bronx County (Nancy M. Bannon, J.), entered on orabout July 13, 2010, which adjudicated appellant a juvenile delinquent upon a fact-findingdetermination that he committed acts that, if committed by an adult, would constitute the crimesof forcible touching and sexual abuse in the second degree, and conditionally discharged him fora period of 12 months, unanimously modified, on the law, to vacate the finding of sexual abusein the second degree, and otherwise affirmed, without costs.
The court credited the testimony of the 11-year-old complainant[FN*] and found, based on her testimony, that on the morning of October 6, 2010 she was in the schoolgym with approximately 100 other students, including 10-year-old appellant. At some pointduring gym class, the complainant was walking by herself towards the bleachers where themajority of her friends were sitting. It was at this point that appellant quickly approached her, andwhen he was face-to-face with her, used both of his hands to shove her with such force that shefell backwards onto the gym floor. Appellant's friend, just as quickly, restrained the complainantby holding her arms above her head while she was still on the gym floor. Appellant then stoodover the complainant, and using both of his hands, grabbed, squeezed and twisted thecomplainant's breasts. Once appellant released the complainant, she chased after him, yelling thathe should never have touched her. Appellant did not say anything to the complainant during theincident or the subsequent chase.
A person is guilty of sexual abuse in the second degree when he "subjects another person tosexual contact and when such other person is . . . [l]ess than fourteen years old"(Penal Law § 130.60 [2]). Sexual contact is defined as "any touching of the sexual or otherintimate parts of a person for the purpose of gratifying sexual desire" (Penal Law § 130.00[3]). The crime of forcible touching requires a finding that the individual "intentionally, and forno legitimate purpose, forcibly touche[d] the sexual or other intimate parts of another person forthe purpose of degrading or abusing such person" (Penal Law § 130.52). Forcible touchingincludes[*2]"squeezing, grabbing or pinching" (id.). Thestatutory language requiring the perpetrator to have the intent to degrade or abuse recognizes thatnot all crimes of a sexual nature are committed for the purpose of gratifying sexual desire (Memof Atty Gen approving Senate Bill S8283, Aug. 22, 2000, Bill Jacket, L 2000, ch 1). Indeed, oneof the stated purposes for creating the crime of forcible touching was to "close[ ] existingloopholes related to sex crime prosecution" (2000 NY Senate Bill S8238). Here, the court'sfinding that appellant committed the offense of forcible touching was based on legally sufficientevidence. The complainant's testimony established that there was no legitimate purpose forappellant to shove and touch her in this way. Appellant's conduct was aggressive and intentional,and done at a point during gym class when the complainant was walking by herself. Contrary toappellant's argument below, the parties were not engaged in a game at the time, nor had theyparticipated in a game together at any point during gym class. Notably, the complainant testifiedthat boys and girls were supposed to stay on opposite sides of the gym.
Appellant's requisite mental state and purpose, which can be inferred from his conduct andthe surrounding circumstances (People v Bonsu, 290 AD2d 251 [2002], lv denied98 NY2d 636 [2002]; Matter of Jonathan F., 290 AD2d 385 [2002]), was to degrade andabuse the complainant. Shortly before the incident, appellant had been rebuffed by thecomplainant in front of a group of sixth-grade girls. The complainant testified that while she andher friends were practicing cheerleading in the gym, appellant was hovering nearby. Thecomplainant could not remember if one of her friends, or appellant, told her that appellant "liked"her. Either way, the complainant was clear in telling appellant to leave her alone and that she didnot "like" him. The complainant also testified that she had never spoken to or seen appellant priorto that day in the gym class. Rather, she only had heard of appellant because his cousin was oneof her classmates. It was only after being rebuffed by the complainant and embarrassed in frontof his peers that appellant then sought out the complainant and pushed her to the ground into asubmissive position in front of the other students.
Although a close question, we conclude there was insufficient evidence to prove thatappellant committed the offense of sexual abuse in the second degree. While appellant's behavioris offensive, "the evidence was insufficient to establish beyond a reasonable doubt that he wasacting for the purpose of obtaining 'sexual gratification' as required under the Penal Law" (Matter of Shamar D., 84 AD3d605 [2011]; see Matter of Keenan O., 273 AD2d 167 [2000]; Matter of CliftonB., 271 AD2d 285 [2000]). Indeed, although the conduct in Matter of Clifton B. wasmore graphic and unambiguous, this Court determined that it could not be readily inferred fromthe appellant's conduct that he acted for the purpose of gratifying a sexual desire. Here, we havefar less graphic conduct and thus, the element of sexual gratification cannot be readily inferredfrom appellant's conduct or the surrounding circumstances.
This Court has sustained the count of sexual abuse in cases where there can be noexplanation other than that the assailant was acting to obtain sexual gratification (Matter of Najee A., 26 AD3d 258[2006], lv denied 7 NY3d 703 [2006] [appellant restrained complainant and repeatedlyrubbed his genitals against complainant's buttocks, while trying to remove complainant's pants];Matter of Joel H., 279 AD2d 266 [2001] [appellant, a teenager, and complainant were ata public swimming pool when appellant fondled complainant's breasts while appellant'saccomplice rubbed his genitals against the complainant's buttocks]). However, [*3]in this case, in light of appellant's young age and the absence of anyother evidence showing that he was acting to gratify a sexual desire, the conviction for sexualabuse was legally insufficient. Concur—Tom, J.P., Andrias, Acosta, Freedman andRichter, JJ.
Footnote *: The appellant did not testify onhis behalf or call any witnesses.