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.