There is insufficient evidence to establish that the appellant, 11 years-old at the time of the incident, intended to make sexual contact with the victim. Contrary to the court's finding, it could not be inferred readily from appellant's conduct that his action was undertaken for the purpose of gratifying sexual desire (Penal Law §§ 130.65; 130.00[3]). The circumstances of the incident, i.e., the chaotic situation of children fighting on a school bus, does not clearly establish that appellant's actions were taken for sexual gratification.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.