People v. Wilt

convicted as noted above and sentenced to an indeterminate term of imprisonment not to exceed seven years on each of the first two counts and four years on the third count, sentences to run concurrently. Meanwhile, on October 18, 1972, his petition to the Appellate Division to dismiss the detainer warrants was dismissed. Defendant first contends on this appeal that he was denied his right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution and, consequently, that the trial court should have granted his motion to dismiss the indictment. His reasoning relative to this contention is most persuasive and has strong support in the case law and, hence, we find this issue to be dispositive of the case. The Sixth Amendment guarantee of a speedy trial is clearly applicable to State criminal prosecutions (Klopfer v. North Carolina>, 386 U. S. 213 ), and, in determining whether a defendant has been denied^ this right, we should consider such factors as the length of the delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant (Barker v. Wingo, 407 U. S. 514 ). Moreover, that the accused is serving a prison sentence imposed by another jurisdiction in no way dispenses with his right to a speedy trial, but imposes an additional burden upon the prosecution to make a diligent good faith effort to bring the accused before the court for trial (Smith V. Hooey, 393 U. S. 374 ). Indeed, the prejudice which results from a delay in prosecution is increased for one incarcerated without the State, as he is isolated far from the place where the alleged offense took place, and obviously hampered in preparing his defense (Smith v. Hooey, supra). When we apply these guidelines to the instant case, it becomes readily manifest that a dismissal of the indictment is in order. There was an unquestionably long delay of more than two years between indictment and trial, and it is clear that defendant asserted his right to a speedy trial and was prejudiced by its delay (cf. Barker V. Wingo, supra). Furthermore, even defendant’s alleged refusal to waive extradition at one point in the proceedings does not serve to defeat his claim as, at the time of his refusal, the prosecution was already untimely (cf. People v. Winfrey, 20 N Y 2d 138 ). Likewise, the District Attorney’s allegation of congested calendar conditions made originally on this appeal is unpersuasive. The facts in People v. Wallace :( 26 N Y 2d 371 ) are markedly similar to this case. The defendant there was indicted by a Richmond County Grand Jury while incarcerated in a Georgia Federal prison. A detainer was lodged with the Federal authorities, but defendant was not arraigned in New York until 11 months after the filing of the indictment. Such being the ease, the Court of Appeals held that defendant had been denied a speedy trial as the People could offer nd valid excuse for their inaction. We reach a like result here. In view of this conclusion, we need not discuss the other issues raised. Judgment reversed, on the law and the facts, and indictment dismissed. Herlihy, P. J., Cooke, Sweeney, Kane and Main, JJ., concur.