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Supreme Court, Appellate Division, First Department, New York.

IN RE: CLIFTON B., A Person Alleged to be a Juvenile Delinquent, Appellant. Presentment Agency.

Decided: April 13, 2000

NARDELLI, J.P., MAZZARELLI, LERNER and FRIEDMAN, JJ. Brian L. Friedman, for Appellant. A. Orli Spanier, for Presentment Agency.

Order of disposition, Family Court, Bronx County (Myrna Martinez-Perez, J.), entered on or about May 4, 1999, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crime of sexual abuse in the first degree, and placed him on probation for 12 months, unanimously reversed, on the law, without costs, and the petition dismissed.

There is insufficient evidence to establish that the appellant, 11 years-old at the time of the incident, intended to make sexual contact with the victim.   Contrary to the court's finding, it could not be inferred readily from appellant's conduct that his action was undertaken for the purpose of gratifying sexual desire (Penal Law §§ 130.65;  130.00[3] ).   The circumstances of the incident, i.e., the chaotic situation of children fighting on a school bus, does not clearly establish that appellant's actions were taken for sexual gratification.