IN RE: Mikalo D.

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Supreme Court, Appellate Division, First Department.

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


Decided: February 25, 2016

Mazzarelli, J.P., Renwick, Manzanet–Daniels, Kapnick, JJ. Tamara A. Steckler, The Legal Aid Society, New York (Judith Stern of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Jonathan Popolow of counsel), for presentment agency.


Order of disposition, Family Court, Bronx County (Peter J. Passidomo, J.), entered on or about June 17, 2014, 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 placed him on probation for 12 months, unanimously modified, on the law, to the extent of vacating the finding as to second-degree sexual abuse 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 (see People v. Danielson, 9 NY3d 342, 348–349 [2007] ).  There is no basis for disturbing the court's credibility determinations.  The evidence supports an inference that at least one of the purposes of appellant's sexual attack on the victim was sexual gratification (see e. g. People v. Najee A., 26 AD3d 258 [1st Dept 2006], lv denied 7 NY3d 703 [2006] ).

As the presentment agency concedes, the second-degree sexual abuse finding should be dismissed as a lesser included offense.  However, appellant's argument for dismissal of the third-degree finding is unavailing.