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

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

Decided: February 21, 2006

TOM, J.P., MAZZARELLI, ANDRIAS, NARDELLI, MALONE, JJ. Tamara A. Steckler, The Legal Aid Society, New York (Marcia Egger of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Edward F.X. Hart of counsel), for presentment agency.

Order of disposition, Family Court, New York County (Susan R. Larabee, J.), entered on or about November 16, 2004, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts, which, if committed by an adult, would constitute the crimes of sexual abuse in the first degree (two counts), forcible touching, and unlawful imprisonment in the second degree, and placed him on probation for a period of eighteen months, unanimously modified, on the law, to the extent of vacating the finding as to unlawful imprisonment and dismissing that count of the petition, and otherwise affirmed, without costs.

The court's finding as to sexual abuse and forcible touching was based on legally sufficient evidence and was not against the weight of the evidence.   There is no basis for disturbing the court's determinations concerning credibility.   The sexual gratification element could be readily inferred from appellant's conduct, which included rubbing his clothed penis against the victim's buttocks while attempting to pull down the victim's pants (see e. g. Matter of Stephen F., 300 A.D.2d 52, 750 N.Y.S.2d 500 [2002];  Matter of Joel H., 279 A.D.2d 266, 718 N.Y.S.2d 347 [2001] ).   The court properly rejected appellant's claim that the incident was merely a playful wrestling match.

As the presentment agency concedes, appellant is entitled to dismissal of the unlawful imprisonment count based upon the merger doctrine.