Opinion
October 17, 1988
Appeal from the Family Court, Queens County (Torres, J.).
Ordered that the order of disposition is affirmed, without costs or disbursements.
Upon the exercise of our factual review power, we are satisfied that the fact finding was not against the weight of the evidence (Family Ct Act § 342.2; cf., CPL 470.15). The hearing court was not required to draw an adverse inference against the prosecution for its failure to produce three witnesses since there was no evidence in the record that they were either available or under the control of the prosecution at the time of the hearing (see, People v Watkins, 67 A.D.2d 717). This is especially true where, as in this case, defense counsel objected when the prosecution attempted to introduce evidence to explain why the three witnesses were not called, and the objection was sustained (see, People v Bartolomeo, 126 A.D.2d 375; 1 CJI[NY] 8.53, at 447).
Since the evidence showed that the appellant struck the complainant with his fists, the hearing court could properly find both the intent to commit an act which, if committed by an adult, would have constituted the crime of assault and conduct to carry out that intent. "The mere fortuity that a physical injury was not inflicted is no defense to the charges of attempted assault" (People v Early, 85 A.D.2d 752, 753). Lawrence, J.P., Kunzeman, Sullivan and Balletta, JJ., concur.