Defendant when indicted in New York in September, 1947 was serving a penal sentence of from *175three to five years in the Commonwealth of Massachusetts. It is not suggested that the District Attorney had any effective means of transferring him to Columbia County, New York, for trial while that sentence was being served.
The provisions of section 669-b of the Code of Criminal Procedure for entering into the interstate agreement on detainers had not then been enacted (1957). No specific reciprocal rights between States arose from the provisions of section 832 of the code under which the Governor might agree with the Governor of another State to have transported here a prisoner in the other State.
A bench warrant was filed with the Massachusetts authorities by the Columbia County District Attorney with a request he be notified before defendant’s release from custody. But there was then outstanding with the Massachusetts sentencing court a bench warrant from the United States District Court; and upon termination of the Massachusetts imprisonment this warrant, rather than the New York warrant, was recognized; and the defendant was turned over to Federal authorities where he was committed to a Federal prison in Connecticut on a sentence of one year and a day.
The motion to dismiss the indictment for nonprosecution was made October 30, 1950. Defendant was taken into Federal custody in September, 1949. During two of the three years elapsing between the September, 1947 indictment and this motion, he was in Massachusetts custody.
In People v. Piscitello (7 N Y 2d 387) it was held that the detention by the United States of a prisoner awaiting trial was not a ground for delaying a State trial, since under section 4085 of title 18 of the United States Code “he could have been produced in the State court upon request” (p. 389).
There the prisoner had been detained in Federal custody in the same county in which the State prosecution was being maintained; and although it is clear that the Attorney General of the United States has power to transfer convicted Federal prisoners held in Federal penal institutions in other States to State courts for trial under section 4085 of title 18 of the United States Code, he is required to examine on the merits the circumstances of each application made by a Governor of a requesting State and decide whether or not it is, as the statute provides ‘ ‘ in the public interest to do so ’ ’.
There can be no doubt that such a statute as this mandates the Attorney General to examine the facts, to weigh the competing interests, and to make an informed decision. He would have to decide in this case whether, the prisoner having just *176been taken into Federal custody in Massachusetts, notwithstanding a New York warrant, it would be advisable to interrupt a short Federal sentence to take the prisoner to New York to face a new trial which might well take the prisoner out of Federal custody for a substantial part or perhaps all of the Federal penal sentence; or, alternatively, to wait until the short Federal sentence had been served and then deliver him to the State.
The taking of the defendant to Connecticut while the New York warrant waited could be deemed -prima facie as expressing a view of Federal authorities that the Federal penal requirements be met first.
Since section 4085 seems to be a codification of a power to transfer Federal prisoners to State courts for prosecution, which was always recognized by the United States courts (Ponzi v. Fessenden, 258 U. S. 254), it is important to examine what the Attorney General must consider in reaching a determination on a transfer that “ it is in the public interest to do so ”.
He may, in the interests of comity between the Federal and State governments transfer prisoners in his custody to a State, in the words of Chief Justice Taft “ provided it does not prevent enforcement of the sentence of the federal courts or endanger the prisoner” (Ponzi v. Fessenden, supra, p. 263; Logan v. United States, 144 U. S. 263).
The court in Marsino v. Higgins (10 F. 2d 534, 535, affd. 270 U. S. 627) noted that “ the Attorney General’s discretion must be fairly exercised ’ ’ and the prisoner duly protected, especially where he is in an institution ‘ ‘ remote from the place of trial ’ ’, and “ [i]t is to be presumed that the Attorney General has assured himself upon this aspect of the matter before assenting to the state’s request”. (See, also, United States ex rel. Buchalter v. Warden of Sing Sing Prison, 141 F. 2d 259, cert. denied 321 U. S. 780.) It is not clear, therefore, that the application to remove defendant to State custody would in this case have been granted.
In any event the administrative process, and especially the careful examination required to reach an advised decision inevitably would have taken some time to go through. The portion of the year served in the Federal institution which this administrative process might have occupied before it could have been possible to get jurisdiction of the defendant could have been large enough in our opinion to render it unnecessary to find there was undue delay in the trial.
A showing by a District Attorney that he activated a request by the Governor to the Attorney General is not the only defense *177that may be made by him to a motion to dismiss. He may well argue that the time differential between this process, if successful, and the completion of a short Federal prison term would have no significant bearing on the promptness of the trial. And the People are entitled to whatever inferences in support of this argument are deducible from this record.
The rule is that whether there has been undue delay depends “upon the circumstances of each particular case” (People v. Hall, 51 App. Div. 57, 62), language quoted in People v. Prosser (309 N. Y. 353, 360), where it was noted by analogy that the “ inquiry in each case is factual ”.
The judgment should be affirmed.
Gibson and Taylor, JJ., concur with Heelihy, J.; Bergan, P. J., dissents and votes to affirm in opinion, in which Reynolds, J., concurs.
Judgment of conviction reversed, on the law and the facts, indictment dismissed and defendant discharged.