In re Jabari I. , 935 N.Y.2d 9 ( 2011 )

The then-13-year-old complainant testified that the then-13year-old appellant made rude sexual comments and gave her a quick slap on her buttocks in a classroom in which other students and their teacher were all present. Even if fully credited, this evidence was legally insufficient to establish beyond a reasonable doubt that appellant performed this highly offensive behavior “for the purpose of gratifying sexual desire” (Penal Law § 130.00 [3]; see Matter of Shamar D., 84 AD3d 605 [2011]; Matter of Keenan O., 273 AD2d 167 [2000]).

Regardless of whether the evidence was legally sufficient, we also conclude that the court’s finding was against the weight of the evidence. Concur — Mazzarelli, J.P, Andrias, Renwick, Freedman and Manzanet-Daniels, JJ.