Temporarily Assigned (dissenting). I agree with the majority that Barker calls for “application of a balancing of interests test * * * on an ad hoc basis and necessarily involves subjective reaction” to the balanced consideration of the four pertinent factors — length of time, excuse for delay, demand by defendant and prejudice. (201-202). However my own balancing of the stated factors as applied to the instant circumstances leads to concurrence with the Appellate Division conclusion for dismissal of the indictment on speedy trial grounds, and for essentially the same reasons as set forth in its per curiam opinion. 133 N. J. Super. 469 (App. Div. 1975).
I cannot agree with the majority’s assessment of the Appellate Division opinion as failing “to weigh in the balance * * * defendant’s conduct also, and the impact of the delay on him.” (p. 201). The court adverted to the fact that defendant did move to dismiss the indictment on speedy trial grounds and that, as to the situation prior to indictment, “as a practical matter defendant could hardly ask to be indicted.” 133 N. J. Super, at 473. I agree with that observation. Moreover, at what time period or periods prior to indictment could defendant reasonably be required to have made motions to dismiss the charge under R. 3:25 — 3 ? Every three months; six months, etc. ? See Barker v. Wingo, supra, 407 U. S. at 527-528, 92 S. Ct. 2182, 33 L. Ed. 2d 101. I believe it should be assumed that a charged but unindieted defendant wants the charge disposed of, one way or the other, with reasonable dispatch, without being required to prove that desire by periodic motions to dismiss *212at peril of loss of his constitutional right to an expeditious prosecution.
As to prejudice, as the Appellate Division observed, “Barker makes it clear that delay is inherently capable of leading to prejudice, both to defendant and society.” 133 N. J. Super, at 473. That is a correct reading of Barker. While defendant was not prejudiced in the actual defense against the charge (as he conceded guilt) he did sustain the anxiety, community hostility, and unsettlement of his affairs which every person under criminal charges is presumed to bear, see Barker v. Wingo, 407 U. S. at 532, 533, 534, 92 S. Ct. 2182, 33 L. Ed. 2d 101. Moreover, it is now clear that “actual prejudice” is not necessarily a prerequisite to relief on “speedy trial” grounds. Dillingham v. United States, 423 U. S. 64, 96 S. Ct. 303, 46 L. Ed. 2d 205, 207 (1975).
Finally, I do not believe the majority sufficiently weighs the community interest in discouraging the kind of totally unjustified delay for which the State was here responsible over a period of 28 months between arraignment and trial. Dismissal of this gambling prosecution on speedy trial grounds would, I think, be a relatively small price to pay for alerting the prosecutorial machinery of the State to the social urgency of expeditious prosecutions of crime. See p. 202; Barker v. Wingo, supra, 407 U. S. at 519-520, 92 S. Ct. 2182, 33 L. Ed. 2d 101.
I would affirm the judgment of the Appellate Division.
For reversal — Justices Mountain, Sullivan, Clifford and Schreiber and Judge Kolovsky — 5.
For affirmance — Justice P ashman and Judge Coneoed — 2.