IN RE JOEL H

The court's finding was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis upon which to disturb the court's determinations concerning credibility. The element of intent to obtain sexual gratification (Penal Law § 130.00) could be inferred from the totality of the circumstances, which included, inter alia, the 15-year-old appellant's fondling of the 11-year-old complainant's chest area as his accomplice held the complainant from behind and repeatedly rubbed his penis against the complainant's buttocks (see, Matter of Kenny O., 276 A.D.2d 271, 714 N.Y.S.2d 206). Contrary to appellant's argument, the fact that this incident arose from the escalation of horseplay in a public swimming pool did not provide a credible innocent explanation for this clearly sexual conduct.

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.