dissents and votes to affirm the order appealed from with the following memorandum in which Friedmann, J., concurs. I respectfully dissent. While I agree with the majority that the 17-year delay in this case does not, in and of itself, warrant dismissal of the indictment, it does shift the burden to the People to establish good cause for the delay (see, People v Lesiuk, 81 NY2d 485; People v Singer, 44 NY2d 241). In my opinion they failed to do so.
First, it is clear that the People were aware of the defendant’s identity prior to their initial presentation of this matter to the Grand Jury in 1982, which resulted in an indictment against Frank Riccardi and Ronnie Barlin. In all probability, had the People presented the facts concerning the defendant to the Grand Jury, an indictment against him would have been secured. However, for unknown reasons the People crossed the defendant’s name off their presentation memorandum.
Second, although it is not clear from the record of the Singer *599hearing, it appears that the defendant has a New York State drivers license, and has been in the New York State Department of Motor Vehicles database for a not insignificant amount of time. However, there is no proof in the hearing record that the police actually searched this database for any record of him prior to 1997.
While it may be true, as the majority asserts, that there was a valid reason to wait some period of time to allow the fear surrounding this crime to dissipate, the People have failed to show why they waited over 16 years to reopen an investigation, which then took less than a year to complete. Furthermore, although it is clear that the bartender, one of the original witnesses who identified the defendant as a perpetrator, was interviewed both in 1981 and when the case was reopened, there is no statement from him indicating that he was afraid to testify in 1981. Finally, although the Grand Jury minutes of this case indicate that the defendant was one of the persons who had a gun in his hand, there is no statement by any Grand Jury witness to the effect that the defendant was the person who actually shot John D’Agnese in the face at point-blank range as the majority contends.
While a dismissal in this case might result in a guilty man going free, forcing the defendant to stand trial might require an innocent man to defend himself against accusations involving circumstances and actions which occurred almost two decades ago, when the evidence he may need is likely to have disappeared. Additionally, as is apparent from the Grand Jury testimony, proof of the defendant’s guilt or innocence will depend upon witnesses whose memories have faded. Furthermore, it appears, based on the appellant’s brief, that the People no longer contend that the defendant was one of the shooters. Considering the interest of society, as well as that of the defendant in assuring the prompt, fair prosecution and adjudication of those suspected of criminal activity (see, People v Staley, 41 NY2d 789), and since in my opinion, the People have failed to meet their burden of showing good cause for the delay (see, People v Lesiuk, supra; People v Singer, supra), I would affirm the dismissal of the indictment herein.