
    The People of the State of New York, Appellant, v. Louis Saccenti, Respondent.
    Argued January 8, 1964;
    decided February 20, 1964.
    
      
      Frank D. O’Connor, District Attorney (Benj. J. Jacobson and Harvey B. Ehrlich of counsel), for appellant.
    I. The return of the indictment, prior to argument of the motion to dismiss the prosecution of the complaint, made the question moot and the order academic. The indictment having been returned, an explanation for the prior delay was also made academic. Assuming arguendo the necessity for such showing, “ good cause ” for the intervening delay was sufficiently shown during the course of argument on the motion and by the G-rand Jury minutes. (People v. Pearsall, 6 Misc 2d 40; People ex rel. Hirschberg v. Close, 1 N Y 2d 258; People ex rel. Livingston v. Wyatt, 186 N. Y. 383; Matter of Manning v. Valente, 272 App. Div. 358; People ex rel. Willett v. Quinn, 150 App. Div. 813; People v. Prosser, 309 N. Y. 353; Matter of Prentice v. Gulotta, 13 Misc 2d 280; Matter of McDonald v. Goldstein, 273 App. Div. 649; Matter of Johnson v. Boldman, 24 Misc 2d 592; Manceri v. City of New York, 12 A D 2d 895; People v. Riley, 191 Misc. 888; Matter of Coleman v. Lee, 1 Misc 2d 685; People v. Edwards, 19 Misc 2d 412.) II. The determination of a motion to dismiss the prosecution of a person held to answer a complaint because of the delay in the return of an indictment is discretionary with the court and the sufficiency of the showing of good cause for such delay is also discretionary, and an order denying a motion to dismiss a prosecution made pursuant to section 667 of the code should not have been reversed unless such discretion was abused and the order arbitrary. (People v. Rockhill, 74 Hun 241; People v. Alfonso, 6 N Y 2d 225; People v. Duchin, 16 A D 2d 483, 12 N Y 2d 793; People v. Chirieleison, 3 N Y 2d 170.) III. Assuming arguendo that defendant was entitled to a dismissal of the complaint because an indictment had not been speedily found against him, such dismissal should affect only the counts alleging the crime charged in the complaint which he was held to answer and such dismissal does not warrant the dismissal of all of the counts of the indictment where such indictment contains counts of crimes not charged in the complaint. (People v. Rodgers, 184 App. Div. 461, 226 N, Y. 671; People 
      v. Bevins, 74 Misc. 377, 149 App. Div. 935.) IV. Assuming arguendo that defendant was entitled to a dismissal of the prosecution of the complaint, such dismissal should not bar an indictment charging the commission of felonies. (People v. Wilson, 10 A D 2d 297, 8 N Y 2d 391.) V. The question being novel, where its determination is seemed dependent upon facts made during argument but not sufficiently shown to warrant conclusive action, the matter should be returned to the trial court for further proofs thereon. (People v. Coffey, 11 N Y 2d 142, 13 N Y 2d 726; People v. Friola, 11 N Y 2d 157; People v. Dales, 309 N. Y. 97.)
    
      Joseph A. Solovei for respondent.
    I. The two-year delay in prosecution deprived defendant-respondent of a speedy trial and justified the Appellate Division’s reversal, and the dismissal of the complaint and indictment. (People v. Prosser, 309 N. Y. 353; People v. Pearsall, 6 Misc 2d 40; People v. Masselli, 11 AD 2d 722; People v. Piscitello, 7 N Y 2d 387.) II. Defendant-respondent’s plea of guilty does not preclude this appeal. (People v. Wilson, 8 N Y 2d 391; People v. Chirieleison, 3 N Y 2d 170; People ex rel. Harty v. Fay, 10 N Y 2d 374; People v. Bryant, 12 N Y 2d 719; People ex rel. Hirschberg v. Close, 1 N Y 2d 258.) III. Dismissal of the complaint was mandatory under section 667 of the Code of Criminal Procedure. (People v. Peters, 16 A D 2d 171.)
   Chief Judge Desmond.

This appeal by the People requires us to hand down a decision as to the meaning and effect of section 667 of the Code of Criminal Procedure which reads thus: ‘ ‘ When a person has been held to answer for a crime, if an indictment be not found against him, at the next term of the court at which he is held to answer, the court may on application of the defendant order the prosecution to be dismissed, unless good cause to the contrary be shown.”

Reversing the former County Court of Queens County, the Appellate Division set aside defendant’s conviction entered on his plea of guilty to a felony, and granted defendant’s motion, made before plea, to dismiss the indictment on the ground that it had not been found at the “next term” as required by section 667. A majority of the Appellate Division Justices held that since, in response to the dismissal motion, no “ good cause ” had been shown for the delay in indicting defendant, he was entitled to a dismissal of the indictment and of the criminal cause in tofo. The Appellate Division minority thought that section 667 called for a dismissal only of the “ prosecution ” pending after defendant had been bound over for grand jury action—in other words, that a section 667 motion could accomplish no.more than the release of a defendant held for grand jury action but could not prevent or invalidate a later indictment. We agree with the dissent.

In May, 1959 defendant, arraigned in a Magistrate’s Court on a charge of theft, waived examination and was admitted to bail pending grand jury action. In April, 1961 he moved under section 667 to dismiss the complaint because he had riot been indicted. Before the dismissal motion came on for hearing, defendant (in May, 1961) was indicted on a series of courits which included the charge originally made in the Magistrate’s Court. The motion to dismiss the. complaint was denied. Defendant when arraigned on the indictrrient renewed his motion to dismiss. When it was again denied he. pleaded guilty to one of the charges in the indictment arid was' sentenced arid then took this appeal. ,

We cannot read section 667 of the Code of Criminal Procedure as meaning not only that a dismissal thereunder is a bar to any further prosecution on the same charge but that it results in a dismissal of an indictment also if' one is found before the dismissal motion is heard.

In the first place, the statutory language- does not permit such a construction. It says that, if a defendant bound over for grand jury action be not indicted at the next term and no good cause contra be shown, the court may ? ‘ order the prosecution to be dismissed People v. Dillon (197 N. Y. 254, 256-257) read somewhat similar language, as meaning that “ that particular prosecution is terminated” but that this does not bar subsequent prosecution for the same crime (see, also, Robbins v. Robbins, 133 N. Y. 597, 599). As-was pointed out in Dillon, such a dismissal has: no greater effect than a discharge by a Magistrate on preliminary hearing, and we know that such a discharge has no effect at all on the power of the grand jury later to indict (see People ex rel. Hirschberg v. Close, 1 N Y 2d 258, 261; Collins v. Loisel, 262 U. S. 426, 429).

Next, we have the fact that, after this dismissal motion had been made but before it was heard, an indictment had been handed up. The fact of indictment was in itself ‘' good cause ’ for refusing to dismiss the charge (see People v. Pearsall, 6 Misc 2d 40).

The corresponding section authorizing a motion to dismiss an indictment if not tried at the next term, etc., is section 668 of the Code of Criminal Procedure and it is settled that a section 668 dismissal does not prevent a reindictment within a reasonable time (People v. Wilson, 8 N Y 2d 391, 396). The Wilson holding was based in part on still another section (§ 673) which says that an order for a dismissal under chapter VII ‘ ‘ is not a bar ” “ to another prosecution for the same offense * * * if the offense charged be a felony.” We see no reason why a dismissal for failure to indict should have more drastic consequences than a failure to bring to trial after indictment.

The order appealed from should be reversed and the judgment of conviction reinstated.

Judges Dye, Fuld, Van Voorhis, Burke and Bergan concur; Judge Scileppi taking no part.

Order of Appellate Division reversed and judgment of the then County Court, Queens County, reinstated in the Supreme Court.  