People ex rel. McCarthy v. Washington

—Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered March 20, 1992, which granted the habeas corpus petition, released petitioner and dismissed the juvenile delinquency petition, and order, Family Court, Bronx County (Susan Larabee, J.), entered March 30, 1992, which dismissed the juvenile delinquency petition, unanimously modified, on the law, the facts, and in the exercise of discretion, to the extent that such dismissal of the juvenile delinquency petition is to be without prejudice to the filing of another petition against petitioner, and otherwise affirmed, without costs.

The Family Court’s earlier denial of respondent’s request for a probable cause hearing was improper, as it was based upon defense counsel’s statement that he was not ready to proceed with the fact-finding hearing. The probable cause hearing cannot be waived even though the respondent himself states that he is not ready to proceed with the fact-finding hearing (Family Ct Act § 325.1 [4]; People ex rel. Kaufmann v Davis, 57 AD2d 597, 598). Accordingly, the courts below did not abuse their discretion in dismissing the juvenile delinquency petition (Family Ct Act § 325.3 [4]; see, Matter of Jason G., 189 AD2d 720). Concur—Carro, J. P., Milonas, Wallach, Kassal and Nardelli, JJ.