
    The People of the State of New York, Respondent, v Thomas Taranovich, Appellant.
    Argued June 5, 1975;
    decided July 10, 1975
    
      
      John Joseph Sutter and Gino Papa for appellant.
    I. The 12-month delay between arrest and indictment violates appellant’s right to a speedy trial. (Klopfer v North Carolina, 386 US 213; Dickey v Florida, 398 US 30; People v Wallace, 26 NY2d 371; People v Ganci, 27 NY2d 418; People v Prosser, 309 NY 353; People v Winfrey, 20 NY2d 138; People v Bryant, 12 NY2d 719; People v Blakley, 34 NY2d 311; Barker v Wingo, 407 US 514.) II. The prosecutor’s administrative shortcomings do not establish good cause to excuse the delay of over one year. (People v Prosser, 309 NY 353; People v Blakley, 34 NY2d 311; People v Miller, 34 NY2d 336; Strunk v United States, 412 US 434; Johnson v Zerbst, 304 US 458; People v Taranovich, 44 AD2d 724; People v Artonio, 42 AD2d 716.)
    
      Denis Dillon, District Attorney (William C. Donnino and Calvin K Rafuse, Jr. of counsel), for respondent.
    Appellant’s right to a speedy trial has not been violated. (People v Winfrey, 20 NY2d 138; Klopfer v North Carolina, 386 US 213; Smith v Hooey, 393 US 374; Dickey v Florida, 398 US 30; Barker v Wingo, 407 US 514; People v Ganci, 27 NY2d 418; United States v Ewell, 383 US 116; People v Rainey, 28 NY2d 863.)
   Gabrielli, J.

The question presented for our determination may be phrased as follows: under the particular circumstances attending this criminal prosecution, was the 12-month delay between the appellant’s arraignment and his subsequent indictment violative of his constitutional and statutory rights to a speedy trial? The County Court of Nassau County granted defendant’s motion to dismiss the indictment filed against him on the ground that he had not been afforded a speedy trial. The Appellate Division unanimously reversed this order, denied the motion to dismiss and reinstated the indictment (44 AD2d 724). We affirm.

In the early morning hours of January 13, 1972, an officer of the Nassau County Police Department stopped a vehicle which was being operated in an erratic manner on a highway in Mineóla. When defendant, driver of the vehicle, refused to open the car window and exhibit his operator’s license and car registration, the officer proceeded to return to his patrol car to call for assistance. As he was doing so, the defendant placed his automobile in reverse gear and ran over the officer with the vehicle. Although he immediately sped away from the scene, defendant was apprehended a short distance away by other officers. The injured officer was hospitalized for lacerations, contusions and a cerebral concussion.

He was arraigned the same day on District Court informations charging attempted murder (Penal Law, § 125.25), possession of a dangerous drug in the sixth degree (Penal Law, § 220.05), resisting arrest (Penal Law, § 205.30), leaving the scene of an accident (Vehicle and Traffic Law, § 600), operating a motor vehicle while impaired (Vehicle and Traffic Law, § 1192) and operating a motor vehicle without a license (Vehicle and Traffic Law, § 501).

Eight days following his arrest and arraignment on these charges, defendant was admitted to bail and he has since remained free on bail.

When the defendant waived a felony examination, he was held for the action of the Grand Jury, which, on February 10, 1972 voted a true bill charging him with assault in the first degree (Penal Law, § 120.10) and leaving the scene of an accident. The District Attorney has candidly admitted that the papers on defendant’s case were inadvertently misplaced due to clerical error, and, as a result thereof, the defendant was not indicted until January 19,1973.

A defendant’s right to a speedy trial is guaranteed both by the Constitution (US Const, 6th and 14th Amdts; see Dickey v Florida, 398 US 30, 37-38; Smith v Hooey, 393 US 374, 383; Klopfer v North Carolina, 386 US 213, 226) and by statute (CPL 30.20; Civil Rights Law, § 12). However, before examining the various factors which must be weighed in ascertaining whether or not the defendant has been denied his constitutionally protected right to a speedy trial, we note, of course that if there has been a determination of an infringement of defendant’s speedy trial right by the State, a dismissal of the indictment is required. For example, unlike the invocation of the exclusionary rule which permits a second trial of the defendant so long as "tainted” evidence is not utilized by the prosecution, the only available remedy in a speedy trial situation is necessarily more drastic since it completely precludes the defendant’s prosecution (Barker v Wingo, 407 US 514, 522).

As our prior decisions indicate, there is no specific temporal duration after which a defendant automatically becomes entitled to release for denial of a speedy trial (People v White, 32 NY2d 393; People v Minicone, 28 NY2d 279; People v Ganci, 27 NY2d 418, cert den 402 US 924; People v Prosser, 309 NY 353, 360). Instead, the assertion by the accused of his right to a speedy trial requires the court to examine the claim in light of the particular factors attending the specific case under scrutiny (People v Prosser, supra, at p 360). As this case illustrates, there are no clear cut answers in such an inquiry, and the trial court must engage in a sensitive weighing process of the diversified factors present in the particular case. Moreover, the various factors must be evaluated on an ad hoc basis since no rigid precepts may be formulated which apply to each and every instance in which it is averred that there has been a deprivation of the speedy trial right (Barker v Wingo, supra, at p 530). Additionally, we hasten to add that no one factor or combination of the factors set forth below is necessarily decisive or determinative of the speedy trial claim, but rather the particular case must be considered in light of all the factors as they apply to it (see Sortino v Fisher, 20 AD2d 25, 28, for parallel principles applicable in civil cases).

The following factors should be examined in balancing the merits of an assertion that there has been a denial of defendant’s right to a speedy trial: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay.

The first factor, the extent or duration of the delay, is, of course, important inasmuch as it is likely that, all other factors being equal, the greater the delay the more probable it is that the accused will be harmed thereby. However, as crucial as the length of the delay may be, this court has steadfastly refused to set forth a per se period beyond which a criminal prosecution may not be pursued (People v Prosser, supra, at p 360). In this regard, appellant’s reliance on People v Wallace (26 NY2d 371) is misplaced. That case involved not only an 11-month delay between indictment and arraignment but also a two- and one-half-year delay between the date of the crime and the date of the indictment. Thus, Wallace was not arraigned until nearly three and one-half years after the commission of the crime, whereas the defendant herein was arraigned, and indicted approximately one year after his alleged vehicular assault on the police officer.

The second factor, the reason for the delay, may be in the appellant’s favor since the District Attorney’s failure to indict is attributable to clerical error within his own office. While such inadvertence may seem inexcusable, it will not, in and of itself, be sufficient to warrant the drastic measure of dismissal of the indictment. As far as this factor is concerned, we note also that the delay in handing up the indictment does not appear to have been a deliberate attempt by the prosecution to hamper the appellant in the preparation of his defense and, indeed, no such claim is here made.

The third factor, the nature of the underlying charge, would appear to be in the People’s favor. Appellant was arrested for attempted murder, a class B felony, and indicted for assault in the first degree, a class C felony. Upon such a serious charge, the District Attorney may be expected to proceed with far more caution and deliberation than he would expend on a relatively minor offense. Of course, this is not to say that one’s right to a speedy trial is dependent upon what one is charged with, but rather that the prosecutor may understandably be more thorough and precise in his preparation for the trial of a class C felony than he would be in prosecuting a misdemeanor.

The fourth factor, whether or not there has been an extended period of pretrial incarceration, is not, in this case, a motivation for dismissal of the indictment on defendant’s application since appellant was incarcerated for but eight days before he was released on bail. Historically, this factor has been considered significant because the speedy trial guarantee affords the accused a safeguard against prolonged imprisonment prior to the commencement of his trial (People v Prosser, supra, at p 356). Moreover, a defendant confined to jail prior to trial is at an obvious and distinct disadvantage in the sense that he can only assist in the preparation of his defense to a limited degree because he is unable to gather evidence or to contact prospective witnesses.

The fifth factor, whether or not there is any indication that the defense has been impaired by reason of the delay, is most critical in view of the facts of this particular case. While, of course, it is not incumbent upon a defendant to show that he has been prejudiced by the delay in the commencement of his trial (People v Blakley, 34 NY2d 311, 317), a questionable period of delay may or may not be unreasonable depending upon whether or not the likelihood of the defendant’s acquittal has been effected thereby. For instance, if the delay precipitated by the prosecution resulted in the defendant’s being unable to call certain witnesses, or if the duration of the delay was such that it might be expected that the witnesses would be less able to articulate exactly what had transpired, then the defendant would have a strong argument for dismissal of the indictment (People v Prosser, supra, at p 356). To be sure, we do not depart from the now traditional view in this court that where, in the circumstances delay is great enough there need be neither proof nor fact of prejudice to the defendant. In this case, we are primarily concerned with the testimony of only two witnesses, the appellant and the police officer he allegedly ran over; and it seems highly improbable that the officer is likely to fail to recall what transpired on the morning of January 13, 1972.

Balancing all of these factors, we hold that this defendant was not deprived of his constitutional right to a speedy trial. A one-year delay between the alleged occurrence of a crime and an indictment for a class C felony, even when it results from prosecutorial inattention, in and of itself does not entitle a defendant to a dismissal of the indictment where there is no lengthy pretrial incarceration and no apparent impairment of his defense caused by the delay.

Accordingly, the order of the Appellate Division should be affirmed.

Wachtler, J.

(dissenting). The question in this case is whether the defendant has been denied his right to a speedy trial when, following his arrest, the prosecutor took no further action on the case for over 12 months because he had misplaced the defendant’s file. The trial court held that the defendant’s rights had been violated, and dismissed the indictment. The Appellate Division reversed.

There is a threshold question as to what standard applies. The defendant relies on a long line of decisions from our court which hold two factors determinative: (1) the length of the delay and (2) the reason for the delay. (See, e.g., People v Prosser, 309 NY 353; People v Piscitello, 7 NY2d 387; People v Bryant, 12 NY2d 719; People v Masselli, 13 NY2d 1; People v Winfrey, 20 NY2d 138; People v Wallace, 26 NY2d 371; People v Ganci, 27 NY2d 418; People v Minicone, 28 NY2d 279.) Where the delay is lengthy, the burden is on the prosecutor to justify it. When the prosecutor cannot offer a good excuse, we have held that a delay of 11 months is fatal (People v Wallace, supra). When the delay is due to causes beyond the prosecutor’s control, such as calendar congestion, a delay of 16 months was held to be tolerable (People v Ganci, supra). But even then we were quick to note that 16 months "seems to have approached the excusable limit of delay attributable to the absence of trial facilities” (People v Minicone, supra, at p 281). Here the delay is not attributable to calendar congestion but rather to the prosecutor’s negligence. Under settled law this "affords neither explanation nor excuse” (People v Piscitello, supra, at p 389; People v Wallace, supra, at p 374), and warrants dismissal of the indictment (People v Wallace, supra).

These decisions of course were based on a statutory speedy trial right (see Civil Rights Law, § 12; Code Crim Pro, §§ 8, 667, 668). The Sixth Amendment speedy trial guarantee was not made applicable to the States until 1967 (Klopfer v North Carolina, 386 US 213). And it was not until 1972 that the Supreme Court attempted to define the limits of the Federal right (Barker v Wingo, 407 US 514; see, also, Uviller, Barker v Wingo: Speedy Trial Gets A Fast Shuffle, 72 Col L Rev 1376).

In Barker the Supreme Court established four factors to be considered in determining whether there had been a speedy trial violation (at p 530). The two factors which we had considered determinative — length of delay and reason for delay — were given prominence. However, the court also indicated that the States could consider whether the defendant had demanded a speedy trial, and whether he could demonstrate any prejudice resulting from the delay. These last two factors had never been considered decisive under New York law (see, e.g., People v Blakley, 34 NY2d 311, 316, 317).

The People rely heavily on the Barker standards. Noting that the defendant did not actively demand a speedy trial, and made no effort to show that he was actually prejudiced by the delay, the People urge that he is not entitled to have the indictment dismissed. In other words, the People assume that since the defendant’s right to a speedy trial is now guaranteed by the Federal Constitution, his rights have been diminished.

On oral argument this position was buttressed by a claim that our past opinions are no longer relevant because they are based on statutes which have since been repealed. Actually our prior decisions generally sought to interpret and apply four different statutes (Civil Rights Law, § 12, Code Crim Pro, §§ 8,667, 668).

Section 12 of the Civil Rights Law states: "in all criminal prosecutions the accused has a right to a speedy and public trial.” This statute is still in effect. In the same vein subdivision 1 of section 8 of the Code of Criminal Procedure provided: "In a criminal action the defendant is entitled 1. To a speedy and public trial”. In 1971 this statute was replaced by CPL 30.20 which, in nearly identical terms, guarantees that "After a criminal action is commenced, the defendant is entitled to a speedy trial.” Thus two of the statutes remain unchanged.

Sections 667 and 668 of the Code of Criminal Procedure provided that the defendant was entitled to have the prosecution or the indictment dismissed when he has been held, but not indicted (Code Crim Pro, § 667) or having been indicted, was not brought to trial "at the next term of court * * * unless good cause to the contrary be shown.” These sections were repealed in 1971 with the Code of Criminal Procedure in order to make way for the Criminal Procedure Law and the concept of a fixed time period was not immediately carried forward into the new statute. However there is nothing in the legislative history to indicate any intention to modify or abandon the general speedy trial principles we had established and refined over the years. (See, e.g., Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 30.30.) On the contrary, the goal was simply to eliminate the stated time limitation, i.e., "at the next term of the court”, which had "proved wholly ineffectual” (see Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 30.20, p 79). This requirement, which apparently derived from the English Habeas Corpus Act of 1679 (see Amsterdam, Speedy Criminal Trial: Rights and Remedies, 27 Stan L Rev 525, 533), had never been literally applied in modern times (see, e.g., People v Henderson, 20 NY2d 303, 307) and its elimination simply brought the statute in line with existing case law.

In short the standards governing the statutory right to a speedy trial, which we have long observed, still apply, and the defendant is not obliged to show prejudice or affirmatively demand that his rights be observed. This is not to say, of course, that these factors are completely irrelevant. At times they must be considered, particularly where the defendant’s constitutional right is asserted. If for instance a short delay is involved (see, e.g., People v Henderson, supra) or the People can show good cause (see, e.g., People v Ganci, 27 NY2d 418, supra) the defendant might still be entitled to a dismissal if he can demonstrate actual prejudice or a consistent demand for a speedy trial (People v Blakley, 34 NY2d 311, 317, supra). But when the delay is unreasonably long and the People have not shown good cause, the defendant may rely on his statutory rights without proving more (People v Prosser, 309 NY 353, supra; People v Wallace, 26 NY2d 371, supra).

Whether the delay is unreasonable depends on the circumstances of the particular case (People v Prosser, supra, at p 357). If the charge is serious or complex, it is to be expected that the prosecutor will require more time than usual in preparing the case for trial. But what might be reasonable delay under these circumstances, may be intolerable when a minor, relatively common street crime is involved. Thus the nature of the charge must be considered in determining the significance of the delay. This reflects the legislative intent underlying the statutory right (cf. CPL 30.30, subd 1) and is also in accord with the minimum standards established by the Supreme Court (Barker v Wingo, 407 US 514, supra).

Here, of course, one of the crimes charged (assault first degree — a class C felony, Penal Law, § 120.10) is, on its face, quite serious, although on the facts it appears to be less so. But it is not as serious as the crime charged in Wallace (robbery in the first degree, now a class B felony, Penal Law, § 160.15), where we held an 11-month delay to be unreasonable. Actually the 12-month delay involved here is even more unreasonable, not so much because it is longer, but primarily because of the stage at which it occurred.

In Wallace the delay complained of occurred after indictment. In fact the defendant finally pleaded guilty so that when the case reached this court, the criminal proceedings had been completed. Here the delay occurred prior to indictment and there is no end in sight. Certainly any open-ended delay occurring at the outset of the criminal proceedings must necessarily weigh more heavily against the People than a similar delay occurring during the final stages when the criminal process is nearing completion.

Accordingly the order of the Appellate Division should be reversed and the order of the Nassau County Court reinstated.

Chief Judge Breitel and Judges Jasen and Jones concur with Judge Gabrielli; Judge Wachtler dissents and votes to reverse in a separate opinion in which Judges Fuchsberg and Cooke concur.

Order affirmed. 
      
      . In 1972 the Legislature enacted CPL 30.30 (L 1972, ch 184) providing once again for automatic dismissal unless the defendant be brought to trial within specified time periods, depending on the gravity of the offense. Since however this action was commenced prior to the effective date of that statute (May 1, 1972) it has no application to this case.
     
      
      . On oral argument we were informed that the defendant, a college student who was apparently drunk, fled from a police officer who had demanded his driver’s license. In the process, the defendant’s car ran over the officer’s toes without breaking any bones or causing permanent injury.
     