
    The People of the State of New York, Respondent, v. Joseph Minicone and John Massiello, Jr., Appellants.
    Argued January 20,1971;
    decided April 15,1971.
    
      
      Boy M. Cohn and Irving Anolik for appellants.
    I. Appellants were denied a speedy trial without good cause and their timely motion to dismiss after nearly four years’ delay between indictment and the motion should have been granted not only based on the Sixth Amendment guarantee of a speedy trial, but on due process grounds as well. (People v. Winfrey, 20 N Y 2d 138; Klopfer v. North Carolina, 386 U. S. 213; People v. Wilson, 8 N Y 2d 391; United States ex rel. Von Cseh v. Fay, 313 F. 2d 620; Ross v. United States, 349 F. 2d 210; People v. Masselli, 13 N Y 2d 1; People v. Darrah, 29 A D 2d 816; Johnston v. Zerbst, 304 U. S. 458; People v. Prosser, 309 N. Y. 353; People v. Racassi, 32 A D 2d 928.) II. Defendants were irretrievably prejudiced by certain pervasive and highly prejudicial publicity which was disseminated by the mass media during the trial. A motion for a mistrial should have been granted. III. The People failed to make out a prima facie case and failed to sustain the allegations of the indictment upon all the evidence in the record.
    
      Carl A. Vergari, District Attorney (James J. Duggan of counsel), for respondent.
    I. Appellants were not denied their right to a speedy trial. (People v. Winkler, 34 A D 2d 834; People v. White, 33 A D 2d 789; People v. Racassi, 32 A D 2d 928; People v. Prosser, 309 N. Y. 353; People v. Walston, 60 Misc 2d 531; People v. Darrah, 29 A D 2d 816; Chapman v. United States, 376 F. 2d 705, 389 U. S. 881.) II. Appellants’ motion for a mistrial was properly denied. III. Appellants’ guilt was proved beyond a reasonable doubt.
   Bergan, J.

A delay of almost four years between the indictment of defendants on September 28, 1965 and their trial June 17, 1969, at which they were convicted of assault, second degree, and maiming, has effectively deprived them of their constitutional and statutory right to a prompt trial (Civil Rights Law, § 12; Code Grim. Pro., § 8, subd. 1; People v. Prosser, 309 N. Y. 353). Prosecutions in State courts are now governed by Sixth Amendment requirements for expedient trial (Klopfer v. North Carolina, 386 U. S. 213).

Although the People show excuse for some of the delay attributable to pretrial procedures in which defendants must be deemed to have acquiesced, there are very long periods of delay which are substantially left unexplained in the record. One of these periods is from February 16, 1967 to January 2, 1968. Another and even longer period is from January 10, 1968 until April 18, 1969, when the motion to dismiss was made.

The case is distinguishable, therefore, from People v. Ganci (27 N Y 2d 418) where there was a delay of 16 months which was attributable to the limitations on court facilities in spite of the consistent readiness of the People to try the case.

But even there two of the Judges of the court were of opinion that the lack of public trial facilities was not good enough a ground to excuse the 16-month delay (p. 430) and the period there considered seems to have approached the excusable limit of delay attributable to the absence of public trial facilities.

The obligation is on the prosecutor to move the trial promptly and no demand by the accused is required to actuate this obligation (People v. Prosser, 309 N. Y. 353, supra; People v. Masselli, 13 N Y 2d 1, 6; People v. Darrah, 29 A D 2d 816).

What is an unreasonable delay is a question of degree affected by the circumstances of the particular case. Long delays in the prosecution of criminal cases not only affect adversely the rights of the individual accused but have consequences which reflect on the efficiency and fairness of the criminal law.

Both the Federal courts (Dickey v. Florida, 398 U. S. 30; Klopfer v. North Carolina, 386 U. S. 213, supra) and the courts of New York (People v. Winfrey, 20 N Y 2d 138; People v. Bryant, 12 N Y 2d 719; People v. Piscitello, 7 N Y 2d 387; People v. Racassi, 32 A D 2d 928) have been tightening the requirement that criminal prosecutions move expeditiously.

The present case may usefully be compared with People v. Bryant (12 N Y 2d, at p. 720) where a two-year delay for which the People had “failed to establish good cause” was deemed “ prima facie unreasonable ”.

The judgment should be reversed and the indictment dismissed.

Someppi, J. (concurring).

As one who is sensitive to the necessity for the prompt and effective prosecution of those charged with crime, I reluctantly agree to reverse.

Although unreasonable delays in prosecution are looked upon with the greatest disfavor, the absence of a showing of good cause for the delay, without more, cannot be equated with fault.

Jasen, J. (concurring in result). By constraint and with the greatest reluctance — based on the very long period of delay— I agree to reverse.

The District Attorney has a well-determined responsibility for bringing to trial or other disposition all criminal cases. Indeed, it is his unquestioned duty to observe the constitutional mandate guaranteeing a defendant a speedy trial, and no less to protect the People’s interest in the expeditious prosecution of the guilty.

At a time when those concerned with the administration of criminal justice are attempting to expedite all criminal proceedings, the insufficiently explained 45-month delay in bringing the defendants to trial is intolerable.

Chief Judge Ftjld and Judge Gibson concur with Judge Bergan ; Judge Scileppi concurs in a memorandum, and Judge Jasen concurs in result in a separate memorandum in which Judge Breitel concurs; Judge Burke taking no part.

Judgment reversed, etc.  