I agree with the County Court’s conclusion after a Townsend hearing (People v Townsend, 38 AD2d 569), that insufficient evidence was adduced thereat to sustain the People’s claim that the seven-month delay between the alleged sale by defendant was justiñed by an "ongoing” or "continuing” investigation, and a need to protect the identity of the informer and the undercover police officer.
The majority is of the opinion that the statutory requirement of showing "exceptional circumstances” is inapplicable (see CPL 30.30, subd 4, par [g]). However, in People v Washington (43 NY2d 772, 773), a case in which the People urged an "ongoing narcotics investigation” as an excuse to justify a seven-month delay between defendant’s felony indictment and his arrest thereunder, the Court of Appeals succinctly stated (supra, pp 773-774): "They urge as an excuse an ongoing narcotics investigation. However, the proof of such investigation was deficient * * * Statutory examples of exceptional circumstances would entail at least probable availability of new evidence within a reasonable period of time, and a justified need for additional time to prepare the People’s case. The statutory exception, then, if it is to be given reasonable effect and it is to fulfill the legislative purpose, must be limited to instances in which the prosecution’s inability to proceed is justified by the purposes of the investigation and credible, vigorous activity in pursuing it.” (Emphasis supplied.)
In his opinion for the majority, Mr. Justice Rabin further opines that since the instant delay occurred prior to the commencement of the criminal proceeding, the constitutional guarantee of a speedy trial, and the cases decided thereunder, are inapplicable. Yet, in People v Townsend (38 AD2d 569, supra), in which he sat as Presiding Justice, this court remanded a drug related case for a hearing to determine whether the preindictment delay was occasioned by the Dis*341trict Attorney and held the appeal in abeyance. We stated therein (supra, p 569): "On these papers, a valid explanation has not been given for the preindictment delay. When there has been a delay of almost a year in informing the defendant of the charges against him, a mere claim that the police department records indicate a continuing narcotics investigation is not sufficient. A hearing must be held to determine whether the preindictment delay was reasonable.” (Emphasis supplied.)
Contrary to the thrust of the majority opinion, the courts in this State have not drawn a fine distinction between preaccusatory (due process) and postaccusatory (6th Amdt) delays. An untimely prosecution may be subject to dismissal even though, in the interim, the defendant was not formally accused, restrained or incarcerated during the delay (People v Singer, 44 NY2d 241).
In the matter at bar, the People’s assertion that an "ongoing” investigation of narcotics cases necessitated the seven-month delay is belied by the record. The undercover officer admitted, during his testimony, that persons involved in other narcotics cases being investigated in the Town of Greenburgh had no connection with this defendant. He also conceded that he had been engaged in undercover work in the area for more than five years. As the County Court aptly indicated, certainly other cases stemming from the officer’s undercover operations must have been presented to the Grand Jury during that period, and yet there is no indication that his true identity was ever exposed as a result of such presentations. Further, with respect to the contention that the delay was occasioned by a need to protect the identity of the informer and the undercover police officer, the officer admitted that (1) he had worked with the informer for a period of only a couple of months prior to the commission of the alleged offenses involving defendant, and for only a month thereafter, and (2) he did not know whether the informer was still actively helping the police in such capacity after completing his work with the officer.
Moreover, contrary to the position taken by the People, the officer did not carry on his undercover work in an extremely limited area. He testified at the hearing that his area of operation was in the northern part of the Town of Green-burgh which, the County Court noted, was the largest town in the State of New York.
*342Finally, another important factor militating against the need for continued secrecy is that the officer, for the first 7 years of his 12 years on the Town of Greenburgh’s police force, was engaged in everyday police activity. Many persons residing in the town would reasonably be thought to have known him as a police officer. Furthermore, the officer admitted that even while he worked undercover, some of the people in the town were aware of his purportedly clandestine role in narcotics investigations.
Mention must also be made as to the length of a preindictment delay as a sufficient predicate for dismissal of an indictment. The inference that may be taken from a reading of the majority opinion is that only a delay unconscionable on its face may constitute the sole basis for dismissing an indictment. However, in People v Charette (57 AD2d 594), this court remanded the case for a hearing on defendant’s motion to dismiss the indictment, where the preindictment delay was only four months. In People v Valentin (46 AD2d 906), it was nine months. As previously noted, the Court of Appeals, in People v Washington (43 NY2d 772, 773, supra), dismissed the indictment where the delay was, as in this case, a mere seven months.
Under the circumstances, I believe the defendant did not have to show that he was prejudiced by the seven-month delay. As I read the Court of Appeals decision in People v Singer (44 NY2d 241, supra), a lack of justification for an unreasonable delay is the touchstone for determining whether a defendant’s due process right to prompt prosecution has been violated. As stated by this court in People ex rel. Allen v Dalsheim (63 AD2d 973), involving an unjustified 10-month delay between arrest and a final parole hearing: "In the light of the inordinate length of the delay, his failure to allege prejudice is not relevant.”
In any event, I concur with the County Court’s conclusion that the delay herein did cause defendant to suffer actual prejudice. The only conclusion that can be reasonably drawn from a reading of the hearing transcript is that the delay clouded defendant’s recollection both as to the places where the two alleged sales occurred and as to important details surrounding the identity of the sellers. Such information would be crucial since defendant would undoubtedly raise an agency defense at any trial.
*343Accordingly, I would affirm the County Court’s dismissal of the indictment.
Martuscello, J. P., and Hawkins, J., concur with Rabin, J.; Titone, J., dissents and votes to affirm the order, with an opinion.
Order of the County Court, Westchester County, reversed, on the law and the facts, motion denied and indictment reinstated.