
    The People of the State of New York, Respondent, v. Robert Simmons, Appellant.
   Appeal by defendant from a judgment of the County Court, Westchester County, rendered January 17, 1972, convicting him of robbery and grand larceny, both in the first degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and indictment dismissed. In our opinion, the delay of almost four years between August, 1967, when felony informations were filed in the Court of Special Sessions of the City of Yonkers, and July, 1971, when appellant was returned from Clinton Prison to Westchester County for trial, was unreasonable as a matter of law and no good cause for the delay was established (United States v. Marion, 404 U. S. 307; People v. Minicone, 28 N Y 2d 279, 281, cert. den. 404 U. S. 853; People v. Racassi, 32 A D 2d 928; People v. Boyd, 37 A D 2d 582). Were we not dismissing the indictment, we would reverse and order a new trial based on the erroneous exclusion of a portion of the Duggan police report and the instruction to the jury that the lapse of four years between the commission of the robbery and the trial had nothing to do with the evaluation to be given by the jury of the identification testimony. Lastly, we agree with appellant and with the People that the sentencing court had discretion to make its sentence concurrent with the sentence appellant was then serving. Hopkins, Acting P. J., Martuscello, Gulotta, Brennan and Benjamin, JJ., concur.  