
    The People of the State of New York, Appellant, v. Carmine Alfonso and Andrew Alfonso, Respondents.
    Argued January 9, 1959;
    decided July 8, 1959.
    
      
      Joseph F. Oagliardi, District Attorney (Warren J. Schneider of counsel), for appellant.
    The order of the County Court dismissing the indictments against defendants was an abuse of discretion since the record reflects that good cause to the contrary was shown. (United States v. Provoo, 17 F. R. D. 183; People v. Prosser, 309 N. Y. 353; People v. Hall, 51 App. Div. 57; Ponzi v. Fessenden, 258 U. S. 254; United States v. Holmes, 168 F. 2d 888; Kong v. United States, 216 F. 2d 665.)
    
      Joseph S. Bagno for respondent.
    I. Defendants did not waive, directly or indirectly, any rights that section 668 of the Code of Criminal Procedure conferred upon them. (People v. Martin, 99 App. Div. 372; People v. Shimko, 111 Misc. 487.) II. So-called “ inherent delays ” in our judicial system were not responsible for the delay in the trial of defendants’ case. III. It was not error for one Judge, presiding over the Criminal Part of the County Court, to dismiss indictments for lack of prosecution after another Judge adjourned the trial of said indictments to a later date, where the same Judge one year before had passed upon a similar iriotion made by defendants herein. (Kamp v. Kamp, 59 N. Y. 212.) IV. The order of the County Court dismissing the indictments against defendants was not an abuse of judicial discretion. (People v. Smith, 2 N. Y. Crim. Rep. 45; People v. Corrado, 150 Misc. 787; People v. Exter, 4 Misc 2d 651; People ex rel. Ianik v. Daly, 30 N. Y. Crim. Rep. 47; People v. Harris, 182 Misc. 787; People ex rel. Seiler v. Warden of City Prison, 199 Misc. 570.) V. Defendants were prejudiced by the long delay in preparing their defense and further prejudiced in their social and business life.
    
      David Diamond and Edward S. Silver for New York State District Attorneys’ Association, amicus curies.
    
    I. It was error for one Judge to dismiss indictments for lack of prosecution after another Judge of the same court had previously adjourned the trial of said indictments peremptorily against all the parties to a later date. (Kamp v. Kamp, 59 N. Y. 212; People v. National Trust Co., 31 Hun 20; Willard v. Willard, 194 App. Div. 123; People v. Prosser, 309 N. Y. 353.) II. The dismissal of all the indictments pending against respondents for lack of prosecution was an abuse of judicial discretion. (People v. Martin, 99 App. Div. 372; People v. Shimko, 111 Misc. 487; People v. Shufeldt, 61 Mich. 237; People ex rel. Ianik v. Daly, 30 N. Y. Crim. Rep. 47; Matter of McDonald v. Goldstein, 273 App. Div. 649.)
   Van Voorhis, J.

The memorandum opinion of the Westchester County Court, in dismissing these indictments for failure to prosecute, states: ‘ ‘ The facts are such as to bring the matter squarely within the holding of the Court of Appeals in People v. Prosser (309 N. Y. 353).”

This court held that the facts in the Prosser case compelled dismissal of the indictment for delay as matter of law, without leaving the question of dismissal within the area of discretion of the trial court. By stating that the facts in the instant case brought it squarely within the holding of Prosser, the County Judge held that no area of discretion was open to him in deciding the motion to dismiss these indictments, and that the Prosser case required their dismissal as matter of law. Rule 72 of the Rides of Civil Practice (formerly General Rule of Practice 3) provides that this memorandum of opinion is ‘ ‘ part of the record on which the order was made.” “By rule 3 of the General Rules of Practice, as amended in 1910, we are authorized to look to the opinion of the court to find the ground upon which the order was made in the absence of a statement of such grounds in the order itself.” (Matter of Trombley, 150 App. Div. 14, 17.) This is now the recognized rule (Cohen and Karger, Powers of the New York Court of Appeals, § 120). The effect is the same as though the County Court had stated in its order that these indictments were dismissed on the law and not in the exercise of discretion. Neither section 543-a of the Code of Criminal Procedure nor section 602 of the Civil Practice Act relates to this situation.

The Appellate Division affirmed without opinion (People v. Alfonso, 6 A D 2d 892). Although the Court of Appeals lacks power to review where it is not clear whether the Appellate Division has decided upon the law, or upon the facts or in the exercise of discretion, it has been ruled that where the court of first instance has made clear that its decision has been upon the law alone, and the Appellate Division has affirmed without specifying the grounds, it is presumed to have affirmed on the law only (Equitable Life Ins. Soc. v. Stevens, 63 N. Y. 341, 343; Hewlett v. Wood, 67 N. Y. 394; Metropolitan Sav. Bank v. Tuttle, 293 N. Y. 26; Matter of Haydorn v. Carroll, 225 N. Y. 84). Cohen and Karger, citing these cases, state: “ If the Appellate Division affirms a determination which was stated below to be on the law alone, without itself stating the grounds of its decision, the possibility of the decision having been on the facts or in discretion is also considered to have been negatived.” (Op. cit., § 120, n. 55.)

That the Appellate Division decided this case on the law is further attested by the certificate allowing the appeal to this court under section 520 of the Code of Criminal Procedure by Associate Justice Mubphy, who certified as a member of the majority of that court in this case that “ questions of law are involved which ought to be reviewed by the Court of Appeals ”.

It is thus clear that neither the Westchester County Court nor the Appellate Division dismissed these indictments in the exercise of discretion, but as matter of law, for the reason that they considered dismissal on the law to be compelled by the holding of this court in People v. Prosser (supra). The facts in the instant case are materially different from those in Prosser, and consequently these indictments were not required to be dismissed on the law. Upon the other hand, this record, in my opinion, does not establish that there is no room under the facts and history of this case for the exercise of discretion, or that it would have constituted an abuse of discretion as matter of law to have dismissed these indictments as a discretionary matter under section 668 of the Code of Criminal Procedure. The Westchester County Court and the Appellate Division should have exercised their sound judicial discretion to determine whether the motion to dismiss the indictments should have been granted or denied. Inasmuch as these indictments have been dismissed erroneously on the law and without the exercise of discretion, the orders appealed from should be reversed and the matter remitted to the Appellate Division to determine whether these indictments should be dismissed under section 668 of the Code of Criminal Procedure in the exercise of a sound judicial discretion.

Desmond, J. (dissenting).

Reversal of this purely discretionary order dismissing an indictment for lack of prosecution is beyond our powers and without precedent in this court. Such dismissals are always considered to be discretionary with the lower courts (see 22 C. J. S., Criminal Law, § 472, subd. b, and, as to similar dismissals of civil causes, see Quick Service Novelty Corp. v. Scharf, 4 N Y 2d 799). In New York State the statute itself makes it so. Section 668 of the Code of Criminal Procedure says: “ If a defendant, indicted for a crime whose trial has not been postponed upon his application, be not brought to trial at the next term of the court in which the indictment is triable, after it is found the court may, on application of the defendant, order the indictment to be dismissed, unless good cause to the contrary be shown.”

We may assume that the “ Court [of Appeals] may interfere in the rare situation where there has been an abuse of discretion as a matter of law” (Cohen and Karger, Powers of the New York Court of Appeals, Review in Criminal Cases, p. 745). But if such abuses are theoretically possible, this is certainly not one of them. The first indictment against these defendants had been pending for 21 months and the second for 8 months when dismissal was ordered. In June, 1957, 6 months before the dismissal, these defendants had demanded immediate trial and objected to postponement. Again in October, 2 months before dismissal, these defendants had objected to further delay. In November, 1957, in an effort to get immediate trial, they had demanded a severance but this, too, was denied. Of course, in each instance the County Court had some reason or other for the postponement but it is certainly not the job of this court to decide whether they were good reasons. To attempt such a task is to move outside our constitutionally limited jurisdiction to review in criminal cases (N. Y. Const., art. VI, § 7).

The order should be affirmed.

Fuld, J. (dissenting).

I agree with Judge Desmond and add these few additional lines.

The facts of this case are, of course, different from those presented in People v. Prosser (309 N. Y. 353), but the principle there announced requires an affirmance here. “ The inquiry in each case ”, we wrote in Prosser, “ is factual and, like the question whether there has been undue delay, depends ‘ upon the circumstances of each particular case.’ ” (309 N. Y., at p. 360.) Both courts below found as fact that the defendant was deprived of the speedy trial guaranteed to him and, since there is evidence to support that conclusion, this court may not upset it.

What the law condemns is the denial of a speedy trial and, if there be such denial, it matters not that the delay may have been occasioned by adjournments granted by the court rather than by refusal on the part of the prosecutor to bring the defendant to trial. In either case, the impact upon the accused, the harm done to him, is no less because the State action taken was by a judge instead of a prosecutor. (See People v. Prosser, 309 N. Y. 353, 356-357, supra.)

Chief Judge Conway concurs with Judge Van Voobhis ; Judges Fboessel and Bubke concur in result; Judge Desmond dissents in an opinion in which Judge Dye concurs and Judge Fuld dissents in a separate opinion.

Orders reversed, etc.  