People v. Mudra

Motion to dismiss indictment granted. (Code Crim. Pro., § 8, subd. 1; § 668.) The main question is whether defendant abandoned or waived his section 668 right to request a dismissal for past delay by his prior service of a notice and request for a final disposition of the indictment under the provisions of section 669-a. In accordance with the views expressed in my opinion in the Segura case (People v. Segura, 12 Misc 2d 279 ) I hold that he did not. The remaining question is whether the period of delay — not quite 14 months — is sufficient to entitle defendant to a dismissal. I hold that it is, since the District Attorney has not attempted to show any good cause for its occurrence.

Concededly, the right to a speedy trial is “ necessarily relative ” and consistent with delays reasonably required by public justice (Beavers v. Haubert, 198 U. S. 77 , 86-87) and whether the delay is “ undue ” is determinable by reference to the circumstances and not merely the fact of its occurrence. (People v. Prosser, 309 N. Y. 353 , 357; People v. Godwin, 2 A D 2d 846 , affd. 2 N Y 2d 891 .) But where it exceeds the period contemplated by the statute the defendant is entitled to a dismissal “ unless good cause to the contrary be shown.” (Code Crim. Pro., § 668.) There is no presumption that it was for good cause. (Harris v. Municipal Ct., 209 Cal. 55 , 64.) The burden of proving such cause — and thus, that the delay was not “ undue ” — is on the prosecution. (People v. Prosser, supra, p. 358 ; State v. Lester, 161 Wash. 227 , 230.) It is presumed that the defendant was prejudiced by the delay. (Harris v. Municipal Ct., supra.) Consequently, the delay in this case entitled defendant to a dismissal of the indictment.

Order entered accordingly.