Opinion
July 9, 1958
John C. Gotimer for defendant.
Frank D. O'Connor, District Attorney ( Howard D. Stave of counsel), for plaintiff.
Motion to dismiss indictment granted. (Code Crim. Pro., § 8, subd. 1; § 668.) The main question is whether defendant abandoned or waived his section 668 right to request a dismissal for past delay by his prior service of a notice and request for a final disposition of the indictment under the provisions of section 669-a. In accordance with the views expressed in my opinion in the Segura case ( People v. Segura, 12 Misc.2d 279) I hold that he did not. The remaining question is whether the period of delay — not quite 14 months — is sufficient to entitle defendant to a dismissal. I hold that it is, since the District Attorney has not attempted to show any good cause for its occurrence.
Concededly, the right to a speedy trial is "necessarily relative" and consistent with delays reasonably required by public justice ( Beavers v. Haubert, 198 U.S. 77, 86-87) and whether the delay is "undue" is determinable by reference to the circumstances and not merely the fact of its occurrence. ( People v. Prosser, 309 N.Y. 353, 357; People v. Godwin, 2 A.D.2d 846, affd. 2 N.Y.2d 891.) But where it exceeds the period contemplated by the statute the defendant is entitled to a dismissal "unless good cause to the contrary be shown." (Code Crim. Pro., § 668.) There is no presumption that it was for good cause. ( Harris v. Municipal Ct., 209 Cal. 55, 64.) The burden of proving such cause — and thus, that the delay was not "undue" — is on the prosecution. ( People v. Prosser, supra, p. 358; State v. Lester, 161 Wn. 227, 230.) It is presumed that the defendant was prejudiced by the delay. ( Harris v. Municipal Ct., supra.) Consequently, the delay in this case entitled defendant to a dismissal of the indictment.
Order entered accordingly.