In re Barry H. , 764 N.Y.S.2d 893 ( 2003 )

Appeal from an order of Family Court, Erie County (Dillon, J.), entered January 24, 2003, adjudicating respondent a juvenile delinquent.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Respondent appeals from an order finding that he committed an act that, if committed by an adult, would constitute the crime of assault in the second degree (Penal Law § 120.05 [2]) and placing him on probation for 12 months. Family Court properly denied respondent’s motion to vacate the fact-finding order or for a new fact-finding hearing (see Family Ct Act § 355.1 [1] [a], [b]) on the ground that a witness who had exercised his Fifth Amendment privilege against self-incrimination at respondent’s fact-finding hearing had subsequently become available to testify by virtue of his admission to a charge arising out of the same incident. The availability of that witness does not constitute a “substantial change of circumstances” warranting a new fact-finding hearing or vacatur of the fact-finding order (§ 355.1 [1]; see People v Huggins, 144 Misc 2d 49, 53-55 [1989], revd on other grounds 164 AD2d 784 [1990]; cf. Matter of Eugene S., 185 AD2d 351, 352 [1992]). Present — Pigott, Jr., P.J., Green, Pine, Scudder and Hayes, JJ.