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

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

Decided: May 16, 2006

TOM, J.P., ANDRIAS, FRIEDMAN, WILLIAMS, SWEENY, JJ. Tamara A. Steckler, The Legal Aid Society, New York (Raymond E. Rogers of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Marta Ross of counsel), for presentment agency.

Order of disposition, Family Court, Bronx County (Monica Drinane, J.), entered on or about April 22, 2005, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts that, if committed by an adult, would constitute the crimes of sexual abuse in the first, second and third degrees and forcible touching, and placed him with the Office of Children and Family Services for a period of 18 months, unanimously modified, on the law, to the extent of vacating the finding as to sexual abuse in the third degree and dismissing that count of the petition, and otherwise affirmed, without costs.

The court's finding was based on legally sufficient evidence and was not against the weight of the evidence.   The evidence supported the conclusion that appellant acted as a lookout and was not merely observing a crime (see e.g. Matter of Louis V., 288 A.D.2d 38, 732 N.Y.S.2d 221 [2001];  Matter of Von T., 260 A.D.2d 293, 687 N.Y.S.2d 255 [1999], lv. denied 93 N.Y.2d 815, 697 N.Y.S.2d 562, 719 N.E.2d 923 [1999] ).   There was no reasonable explanation for his presence and conduct during the crime, other than that he was acting as a lookout.

In its oral decision, the court properly dismissed the count of sexual abuse in the third degree as a lesser included offense of sexual abuse in the first and second degrees.   Accordingly, we modify the order of disposition, to the extent indicated, to conform to the court's oral decision.