I would affirm. The trial court did not abuse its discretion. As the facts are presented, the defendant has no record of arrests or convictions other than the indictment in question. While the defendant spoke English, it had been determined at one of the hearings that there was to be a Chinese interpreter, Cantonese dialect. He was at liberty on bail. His attorney' contended, although it was not necessarily established, that he was denied a speedy trial, because of some 14 adjournments.
Hp lfati. been arraigned on October 16,1972, and the hearing at which the indictment was dismissed was on December 6, 1973. His attorney contended that in November, 1972 he had supplied to the People the name of a possible other perpetrator.
On November 19,1973, the attorney for the defendant remonstrated that the defendant was employed and threatened with dismissal every time he took a day off, and the court finally •stated to the People’s representative: “I’ll put this case on for dismissal or trial on December 5th. If you are not ready to-go to trial on that date, the case, I will tell you now, will be dismissed.”*
On the appointed day, the People offered the explanation that the trial could not take place because the detective who would testify was in Ohio, and that an investigation was continuing with respect to the other passible perpetrator. While the court mentioned a speedy trial and dismissed the indictment under CPL 210.40, the case of People v. Wingard (33 N Y 2d 192 [1973) supports the trial court’s determination. A hearing pursuant to People v. Clayton (41 A D 2d 204 [2d Dept., 1973]) would avail nothing.
*617McLiyern, W 3'Nunez, Murphy and Lupia.no, JJ., concur in Per Curiam opinion; Kupferman, J., dissents in an opinion.
Order, Supreme Court, New York County, entered on March 25, 1974, reversed, on the law and the facts, and the matter remanded for a hearing before another Justice, on notice to the parties, for the purpose of determining whether, pursuant to CPL 210.40, the indictment against the defendant should be dismissed in the furtherance of justice.
The other side of the coin perhaps may be found in the situation considered in United States v. Maxey (498 F. 2d 474, 477-478, 483 [2d Cir., 1974] ).