
    The People of the State of New York, Respondent, v. Frank Piscitello, Appellant.
    Argued January 12, 1960;
    decided March 3, 1960.
    
      Bella V. Dodd for appellant.
    I. Appellant was denied the right to a speedy trial provided under the Code of Criminal Procedure and the Civil Rights Law of this State. (People v. Prosser, 309 N. Y. 353; People v. White, 2 N Y 2d 220.) II. The prosecutor’s explanation for undue delay in this case does not constitute “ good cause ”. (Ponzi v. Fessenden, 258 U. S. 254; Taylor v. United States, 238 F. 2d 259.) III. Appellant did not waive his right to a speedy trial. (Ex parte Lopez, 39 Cal. 2d 118; Ex parte Miller, 66 Col. 261; State v. Coover, 165 Kan. 179.)
    
      Frank S. Hogan, District Attorney (Charles W. Manning of counsel), for respondent.
    Defendant’s right to a speedy trial was not violated. (People v. White, 2 N Y 2d 220; People v. Prosser, 309 N. Y. 353; People v. Godwin, 2 A D 2d 846, 2 N Y 2d 891.)
   Dye, J.

The defendant-appellant stands convicted of the crime of attempted robbery, third degree, entered on his plea of “ guilty” taken January 7, 1958 in the Court of General Sessions, New York County, to cover all counts of a second superseding indictment filed by a New York County Grand Jury under date of October 22,1957 (No. 429%-55). That indictment added one new charge and omitted three of the crimes alleged in indictment No. 429%-55, dated July 28, 1955, containing 12 counts, which indictment superseded indictment No. 429-55, dated February 4, 1955, charging 10 crimes, all growing out of an armed holdup of a restaurant and bar. An indeterminate sentence of a term of 15 years to life was imposed January 14, 1958, for the fourth felony offense.

Upon this appeal, the appellant challenges such judgment on the ground that undue delay in arraignment deprived him of the speedy trial to which he was entitled. No one questions that a defendant is entitled to a speedy trial (Code Grim. Pro., § 668; Civil Bights Law, § 12; U. S. Const., 6th Arndt.), or that the burden of proceeding promptly rests on the State and not on the defendant (People v. Prosser, 309 N. Y. 353). But, such right being personal, it may be waived by conduct on the part of the defendant indicating that he is not intent on a speedy trial, for instance, requesting a postponement or an adjournment (People v. Godwin, 2 N Y 2d 891, affg. 2 A D 2d 846), or acquiescence in a delay sought by the prosecution, or failure to make a motion before or at the trial for a dismissal by reason of such delay (People v. White, 2 N Y 2d 220).

The defendant in the case before us was indicted in February, 1955 and not arraigned until July, 1956. The District Attorney, with commendable fairness, rightly acknowledged that this delay of 17 months constituted a denial of a speedy trial to which the defendant was entitled and that, if a motion had been made at the time of the arraignment, the motion would have had to be granted. However, it is argued that the right was waived by subsequent conduct on the part of the defendant and of his counsel.

Upon this record, it may not be said that the rights accruing to this defendant by reason of the undue delay were waived. The granting of the request by defendant’s counsel for a postponement to permit the making of motions for all purposes was broad enough to indicate that any rights enjoyed by the defendant then existing were being preserved and protected. When the motion to dismiss for undue delay was made, even though subsequent in point of time to motions addressed to the indictment, it should have been granted, absent any showing of good cause to the contrary by the prosecutor (Code Crim. Pro., § 668). Here there was no such showing. The fact that defendant, who had been taken into custody January 18, 1955, a date prior to the indictment, was being held in the Federal detention headquarters, New York County, awaiting disposition of certain Federal charges, affords neither explanation nor excuse, since he could have been produced in the State court upon request, provided only that he was returned to Federal custody (U. S. Code, tit. 18, § 4085).

The judgment should be reversed and the indictment dismissed.

Froessel, J.

(dissenting). I dissent and vote to affirm. After the first period of delay in arraignment, occasioned by the defendant’s having been taken into custody to serve an uncompleted Federal term and a subsequent indictment for escape from Federal custody, defendant appeared without counsel and declined the court’s offer of assignment of counsel.

During the nearly six-month period following, and before he ever asserted a violation- of his right to a speedy trial, he and his counsel made no less than six requests for adjournments, one being for a month to allow his counsel a visit to California. During this same period not a single request for adjournment was made by the District Attorney. Further delays were occasioned by defendant’s refusal to plead, additional requests for time and various motions, including challenges to the indictments and for inspection of the Grand Jury minutes. Thus there was abundant evidence of waiver during the period when the District Attorney had made it clear that he wished the case to go to trial. On January 7, 1958 defendant pleaded guilty under the first count of the indictment to the crime of attempted robbery in the third degree, said plea to cover all 10 counts, which had charged him with first degree robbery of separate individuals, first degree grand larceny, first and second degree assault, and criminally possessing a pistol after a prior conviction.

In People v. Prosser (309 N. Y. 353 [1955]), where the fact pattern was altogether different, and ‘1 the defendant had no reason to believe that the remaining indictments would ever be tried ’ ’, we stated that the 11 inquiry in each case is factual and, like the question whether there has been undue delay, depends ‘ upon the circumstances of each particular case.’ (People v. Hall, supra, 51 App. Div. 57, 62.) In this case, not only was there never an application for a postponement in court or upon notice to the defendant, but there was absent even an awareness that the prosecution was being kept alive or that a trial would eventually be had * * *, ivithout which there could be no factual basis for inferring consent or waiver.” (P. 360; emphasis supplied.)

Upon the record in this case, which contained ample “ factual basis for inferring consent or waiver ” with respect to the preceding delay in arraignment, the trial court and a unanimous Appellate Division decided this “factual” issue against the defendant. Not only am I in agreement with that determination, but feel that under the circumstances of this case we are bound by their findings just as we are with respect to any other finding of fact based on substantial evidence.

The judgment should be affirmed.

Chief Judge Desmond and Judges Fuld, Van Voorhis, Burke and Foster concur with Judge Dye; Judge Froessel dissents in a separate opinion.

Judgment reversed, etc.  