Opinion
March 15, 1971
Appeal by defendant from a judgment of the County Court, Nassau County, rendered March 16, 1970, convicting him of petit larceny, upon a plea of guilty, and suspending sentence. Judgment reversed, on the law and the facts, and indictment dismissed. Defendant, indicted on March 30, 1967 for attempted robbery in the first degree, attempted grand larceny in the first degree, assault in the second degree and possession of a dangerous weapon as a felony, was not brought to trial until March 16, 1970. During the 36-month interval, defendant on four separate occasions moved to dismiss the indictment by reason of the People's failure to prosecute. He thus clearly manifested his desire for a speedy trial, of which, of course, the District Attorney was aware. Although both the court below and the District Attorney attribute part of the delay to the congestion of the criminal case calendar in Nassau County, no satisfactory explanation has been given, nor is it apparent from the record, why the District Attorney was able to bring defendant to trial on a later indictment some 18 months before he finally processed the one here under attack (cf. People v. Racassi, 32 A.D.2d 928 -929). While it is true that defendant during the lengthy waiting period did take certain procedural steps, such as moving twice for assignment of new counsel, moving to inspect the Grand Jury minutes, and moving for a psychiatric examination, we do not believe those actions contributed significantly or materially to the over-all delay. After examining the totality of circumstances, we are of the opinion that the three-year delay between the return of the indictment and the commencement of the trial was prima facie unreasonable; and the People failed to establish good cause for the delay ( People v. Bryant, 12 N.Y.2d 719; People v. Agoglia, 35 A.D.2d 583; Code Crim. Pro., § 668). Accordingly, the indictment should be dismissed ( People v. Bryant, supra; People v. Agoglia, supra; People v. Racassi, supra). Martuscello, Acting P.J., Latham, Shapiro, Brennan and Benjamin, JJ., concur.