MATTER OF BARRY H

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) 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 [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, revd on other grounds 164 A.D.2d 784; cf. Matter of Eugene S., 185 A.D.2d 351, 352).