Opinion
April 26, 1993
Appeal from the Family Court, Westchester County (Braslow, J.).
Ordered that the order of disposition is affirmed, without costs or disbursements.
Prior to the fact-finding hearing, the appellant moved to dismiss the petition based on the presentment agency's failure to supply him with a transcript of the testimony given at the probable cause hearing by two witnesses who the presentment agency intended to call at the fact-finding hearing (see, Family Ct Act § 331.4 [a]). We find no error in the Family Court's denial of the appellant's motion. Pursuant to the appellant's demand for the transcript, the presentment agency had ascertained that the court reporter who recorded the probable cause hearing was on an extended vacation in Alaska and that the minutes could not be transcribed in his absence. The presentment agency may not be charged with the failure to obtain a transcript which was clearly unavailable to it (see, People v Fishman, 72 N.Y.2d 884; Matter of Eric W., 68 N.Y.2d 633; People v Jacome, 145 A.D.2d 571). Moreover, because the appellant and his attorney were present at the probable cause hearing and were thus aware of the testimony given, he was afforded "a fair opportunity to use [the] witness[es]' prior relevant statements for impeachment purposes" (People v Poole, 48 N.Y.2d 144, 150; see, People v Rosario, 9 N.Y.2d 286; People v Duprey, 174 A.D.2d 835; People v Grissom, 128 Misc.2d 246).
Viewing the evidence in the light most favorable to the presentment agency (see, Matter of David H., 69 N.Y.2d 792; People v Bracey, 41 N.Y.2d 296), we are satisfied that it was legally sufficient to establish the "aided by another * * * actually present" element of the charge of robbery in the second degree (Penal Law § 160.10). The evidence adduced at the fact-finding hearing reveals that after the appellant snatched a chain from the neck of a fellow bus passenger, one of three youths accompanying him tripped the victim as he tried to pursue the appellant. Contrary to the appellant's contention, the victim's inability to identify which youth stuck his leg into the bus aisle does not render the evidence legally insufficient (see, People v Tucker, 59 A.D.2d 953; see also, People v Thompson, 176 A.D.2d 138). Thompson, J.P., Rosenblatt, Miller and Pizzuto, JJ., concur.