In People v Taranovich (37 NY2d 442), the Court of Appeals enumerated various factors to be considered in deciding the propriety of dismissing indictments for failure to afford a speedy trial.*
*307Two such factors are the extent of the delay, which in this case amounts to 22 months, and the reason therefor. We regard such a delay in the absence of any showing of justification, as presumptively excessive. While the People urge that much of this delay was attributable to the District Attorney’s deferring to Federal authorities, it appears that the prosecution still failed to proceed for nine months after Federal charges were dismissed. As between the defendant and the People, the latter must bear full responsibility for the period of delay subsequent to the dismissal of the Federal charges.
Another factor enumerated in Taranovich is the nature of the underlying charge, which in this case constitutes a class D felony which would not seem the type to carry with it any unusual problems for the prosecution in preparation and proof of the case.
A very significant factor is prejudice to the defendant by potential impairment of its defense, which seems to be present here. The third-party arrestee died on October 4, 1973. While she conceivably would have been a codefendant, her attorney offered testimony at the hearing which the trial court found sufficient to justify a conclusion that the deceased may well have been able to testify to matters which would have exonerated these defendants.
The majority base their decision to reverse the order dismissing the indictment on the testimony of the District Attorney. They concede, as they must, that the District Attorney stated flatly that there was never any express agreement on the part of defense counsel that his clients would waive their right to be tried. Later he again reiterated this when he testified "[h]e [the defense counsel] said, however, that he could not waive on behalf of his clients any delay which had occurred from the time of the arrest to the time of the indictment.” (A period of 22 months.)
In view of this strong concession on the part of the District Attorney, his attempts to show an implied waiver were properly rejected by the trial court. Moreover, the District Attorney specifically testified that the main reason for his delay in proceeding was a specific agreement with Federal authorities as well as his reservations about the merits of his case. We agree with the trial court’s statement that the District Attorney has the obligation to diligently and expeditiously move the case for disposition. The case of People v Timothy (34 NY2d 867), relied on by the majority, is inapposite because it *308was indisputable that, the delays there were attributable to numerous changes in representation by the defendant. Under the circumstances here presented, the trial court had no alternative but to dismiss the indictment.
We accordingly dissent and vote to affirm the order of the trial court.
Larkin and Reynolds, JJ., concur with Herlihy, P. J.; Greenblott and Main, JJ., dissent and vote to affirm in an opinion by Greenblott, J.
Order reversed, on the law and the facts, motion denied and indictment reinstated.
CPL 30.30 (subd 1, par [a]) as effective May 1,.1972—one week after the arraignment of the defendants herein—establishes a period of six months for trial of a criminal action. Taranovich dealt with an action commenced prior to the applicability of this statute, wherefore its guidelines are applicable in the present case.