“ No one questions that a defendant is entitled to a speedy trial (Code Grim. Pro., § 668 [how CPL 30.20]; Civil Rights Law, § 12; TI. S. Const., 6th Arndt.), or that the burden of proceeding promptly rests on the State and not on the defendant (People v. Prosser, 309 N. Y. 353).” (People v. Piscitello, 7 N Y 2d 387, 388.)
There is no dispute about the continued validity of the foregoing statement. (See, also, People v. Wallace, 26 N Y 2d 371.)
In Barker v. Wingo (407 U. S. 514, 516) the United States Supreme Court set out the criteria “ by which the speedy trial right is to be judged.”
We have, in this case, a defendant convicted of criminally selling dangerous drugs, who was indicted on June 14, 1971. He pleaded not guilty on July 2, 1971, and the case was adjourned until July 13, 1971. He then returned to Puerto Rico to face trial on charges there pending against him, which trial went through September and into October, 1971, resulting in his conviction on a six-count drug indictment. On November 26, 1971, he was sentenced in the United States District Court for the Commonwealth of Puerto Rico to a term of 15 years in Federal prison, and thereafter transferred to thé United States Penitentiary in Atlanta, Georgia. Pursuant to a writ of habeas corpus he was returned to the Puerto Rico State Prison on May 10, 1972, and again sent to the United States Penitentiary in Atlanta on June 27, 1972. In July, 1972, the Bronx District Attorney’s office arranged by writ of habeas corpus ad prosequendam for him to be produced in August, 1972, and the case was adjourned on August 24, 1972. For some reason, the correction authorities did not produce him, and the trial actually began on September 11, 1972. The foregoing facts are not contradicted.
The motion in this matter was made orally prior to the voir dire at the trial. The majority opinion, while indicating that, a motion to dismiss an indictment under CPL 210.20 must be made on proper papers and on notice (see People v. Ryan, 42 A D 2d 869 [2d Dept., 1973]) and directing that the motion be remanded for proper papers, holds that a 15 months’ delay, even under these circumstances, requires a full inquiry with the implication that the delay here may be too substantial.
In Barker v. Wingo (supra) a delay of some 5 years was held not to deprive the defendant of his due process right to a speedy trial. Four factors were considered in depth: “ Length *46of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” (p. 530). The court was unanimous in its conclusion, with the two concurring Judges emphasizing the problem of interfering with the defendant’s liberty, whether or not he is free on bail. In this case, the defendant was clearly otherwise engaged. Further, the public’s interest in a speedy determination (Barker v. Wingo, supra, p. 519) was not here a factor.
The defendant’s incarceration does not avoid or denigrate from his right to a prompt determination (People v. Wallace, supra, p. 374). Nonetheless, there is a large backlog of criminal matters requiring disposition. At June 30, 1972, in Bronx County there were 3,110 criminal proceedings pending in the Supreme Court. (Eighteenth Annual Report of N. T. Judicial Conference, 1973, p. 365.) According to the report of the District Attorney of Bronx County, there were 3,333 defendants awaiting trial the week ending June 29, 1973. (Nineteenth Annual Report of N. T. Judicial Conference, 1974, p. 296.)
Under such circumstances, to consider that this case should have been rushed to trial in less than the 15 months that it actually took, is to cast aspersion on the whole criminal justice system.
“ The amorphous quality of the right [of a speedy trial] also leads to the unsatisfactorily severe remedy of dismissal of the indictment when the right has been deprived. This is indeed a serious consequence because it means that a defendant who may be guilty of a serious crime will go free, without having been tried.” (Barker v. Wingo, supra, p. 522.)
In this case, the defendant has already been found guilty by a Bronx jury of serious crimes, and the only real question is whether his indeterminate concurrent sentences of up to 7 and 10 years should run, as imposed, concurrently with his 15-year Federal sentence now being served, or consecutively thereto. (See Penal Law, § 70.25, subd. 1.)
I would affirm..
Nunez, J. P., and Murphy, J., concur with Lynch, J.; Lupiano, J., concurs in an opinion; Kupperman, J., dissents in an opinion.
The question of the reasonableness of the delay herein is remanded to the Trial Justice for hearing and determination. Final determination of the appeal from the judgment of the Supreme Court, Bronx County, rendered on November 6, 1972, is held in abeyance pending the results of such hearing.