In re Cerino P.

Appeal from an order of Family Court, Livingston County (Cicoria, J.), entered January 2, 2002, which adjudicated respondent a juvenile delinquent. It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed in furtherance of justice without costs and the petition is dismissed. Memorandum: Respondent was adjudicated a juvenile delinquent based upon Family Court’s finding that he committed an act that, if committed by an adult, would constitute sexual misconduct as defined by section 130.20 of the Penal Law. The proof establishes that respondent had sexual intercourse with a 14-year-old girl who, by reason of her age, is deemed incapable of consent (see § 130.05 [3] [a]). Upon our review of the record, however, we conclude that the petition should be dismissed in furtherance of justice (see Family Ct Act § 315.2 [1]; Matter of Deborah C., 261 AD2d 138, 138-139). At the time of the act, respondent himself was only 15 years old, and the girl admitted that she initiated the encounter and willingly engaged in sexual intercourse. Nevertheless, only respondent was accused of sexual misconduct; the female participant was not charged. Under the circumstances, where respondent was only one year older than the female participant and “was rio more at fault factually for his conduct than the female participant,” we conclude that respondent’s adjudication as a juvenile delinquent is “manifestly unfair,” and we dismiss the petition in furtherance of justice (Matter of Jessie C., 164 AD2d 731, 736, appeal dismissed 78 NY2d 907; see People v M.K.R., 166 Misc 2d 456, 463-464). Present — Green, J.P., Hayes, Wisner, Burns and Lawton, JJ.