Matter of Toumani D.

Matter of Toumani D. 2018 NY Slip Op 03315 Decided on May 8, 2018 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 8, 2018
Sweeny, J.P., Renwick, Mazzarelli, Gesmer, Singh, JJ.
6474 6473

[*1]In re Toumani D., A Person Alleged to be a Juvenile Delinquent, Appellant. Presentment Agency

Larry S. Bachner, New York, for appellant.

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

Order of disposition, Family Court, Bronx County (Peter J. Passidomo, J.), entered on or about June 5, 2017, 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 and third degrees, and placed him on probation for a period of 12 months, unanimously modified, on the law, to the extent of vacating the finding as to third-degree sexual abuse, and dismissing that count, and otherwise affirmed, without costs.

The court's finding was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the court's credibility determinations. The record supports inferences that when appellant grabbed the victim's vagina, he did so for the purpose of sexual gratification, and that he used forcible compulsion (see e.g. People v Fuller, 50 AD3d 1171, 1174-1175 [3d 2008], lv denied 11 NY3d 788 [2008]).

However, as the presentment agency concedes, the third-degree sexual abuse count should be dismissed as a lesser included offense.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 8, 2018

CLERK