I agree that the trial court erred under the circumstances presented in dismissing this indictment charging defendant with murder in the second degree and in denying the District Attorney’s request for a brief adjournment.
The more far-reaching question is presented by the District Attorney’s contention that there are no circumstances under which a trial court would have the power to dismiss an indictment where, on a date fixed for trial, the District Attorney is unable or unwilling to proceed to trial, and that date precedes the expiration of the periods of time set forth in CPL 30.30. Acknowledging that essentially this principle appears to have been sanctioned by the Second Department (see, e.g., People v Djonbalic, 87 AD2d 598, lv to app den 56 NY2d 651; People v Lebensfeld, 82 AD2d 925, lv to app den 54 NY2d 763; People v Stein, 70 AD2d 634), I believe the position urged by the District Attorney to be fundamentally untenable.
The District Attorney argues persuasively that the Criminal Procedure Law defines the grounds on which a trial court may dismiss an indictment prior to trial; and sets forth the procedures that regulate a motion to dismiss an indictment (see CPL 210.20, 210.45; see, also, CPL 240.70, subd 1; People v Szychulda, 57 NY2d 719). However, CPL 210.20 and 210.45 clearly relate only to motions to dismiss prior to trial and in no way affect the authority of a Trial Judge to dismiss an indictment after a trial has commenced. Once a trial has begun, the principle is fundamental, and not disputed by the District Attorney, that the trial court has the power to dismiss an indictment if the prosecutor is unable or unwilling to proceed to trial for reasons that the court appropriately finds insufficient to justify either an adjournment or a termination of the trial without prejudice. Accordingly, the critical question presented is whether a motion by a defendant in a criminal case to dismiss an indictment where the District Attorney unjustifiably declares his unwillingness or inability to proceed on a date fixed for trial should be considered a pretrial motion regulated by CPL 210.20 and 210.45 or a motion addressed to a Trial Judge after the trial has commenced.
*81On any realistic analysis of what occurred, it seems to me the sounder conclusion to evaluate what occurred as though it were an exercise of discretion by a trial court after a case had been placed on trial. In effect, the District Attorney stated to the trial court that he would not proceed if the case were placed on trial. In light of this clear statement, it would have been a pointless formality for the trial court first to have declared the case on trial and then entertain an application for dismissal on the District Attorney’s failure to proceed.
In response to this analysis, the District Attorney has contended that CPL 30.30 effectively denies a trial court the power to direct a trial to proceed over the objection of a District Attorney if the relevant time periods fixed in the section have not expired. I find nothing in the language of the section, nor in its legislative history, to support this novel concept. CPL 30.30 provides that a motion pursuant to section 210.20 (subd 1, par [g]) must be granted where the People are not ready for trial after specified periods of time. Nothing in the section purports to limit the authority of a trial court to direct that a criminal case proceed to trial prior to the expiration of the periods of time set forth in the section.
The underlying defect in the position urged by the District Attorney is that it would result, if accepted, in a disturbing and unacceptable inequality in the positions of the District Attorney and the defendant. The principle is well established, and indeed has been frequently supported by prosecuting offices, that the trial court under appropriate circumstances may direct a criminal trial to proceed over the objection of a defendant that he is not ready for trial. It is difficult to believe that the several sections of the Criminal Procedure Law relied upon by the District Attorney are correctly interpreted to deny a corresponding power in the trial court to direct a trial to proceed over a similar claim of the District Attorney.
In sustaining the power of a trial court to dismiss an indictment where the District Attorney is unreasonably unable and unwilling to proceed on a date appropriately fixed for trial, I do not intend to minimize in any way the large public interest in the prosecution of meritorious *82indictments. Dismissal of an indictment is a drastic judicial response which should not be utilized except under compelling circumstances and after a serious effort to explore other possibilities. Implicit in the reversal of the trial court’s dismissal of the instant indictment is the conclusion that the circumstances here were not sufficiently compelling to justify the action that was taken.
Kupferman, Carro and Kassal, JJ., concur with Murphy, P. J.; Sandler, J., concurs in a separate opinion.
Order, Supreme Court, New York County, entered on October 20, 1982, unanimously reversed, on the law and the facts, and the indictment reinstated.