Appeal from a judgment of the District Court of Suffolk County, First District (John J. Toomey, J.), rendered April 7, 2010. The judgment convicted defendant, after a nonjury trial, of driving while ability impaired. The appeal from the judgment brings up for review so much of an order dated November 6, 2009, as, upon reargument, denied the branch of defendant's motion seeking to dismiss the accusatory instrument on constitutional speedy trial grounds.

ORDERED that so much of the order dated November 6, 2009 as denied the branch of defendant's motion seeking to dismiss the accusatory instrument on constitutional speedy trial grounds is vacated and the matter is remitted to the District Court for a new determination, following a hearing, of defendant's constitutional speedy trial claim in accordance with the decision herein. The appeal is held in abeyance in the interim. The report shall be filed with all convenient speed.

On December 17, 2003, defendant was arrested for driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and issued an appearance ticket. On February 23, 2004, defendant was charged in an information with driving while intoxicated and arraigned upon the [*2]information. On March 8, 2004, defendant made an omnibus motion, which motion was decided on March 10, 2005. On April 14, 2005, the matter was placed on the trial calendar. On March 4, 2009, defendant moved to dismiss on statutory (CPL 30.30) and constitutional (see CPL 30.20) speedy trial grounds. By order dated August 6, 2009, the District Court denied the motion, addressing only defendant's statutory claim under CPL 30.30. Thereafter, defendant moved for leave to reargue, and, among other things, reasserted that his constitutional right to a speedy trial claim had been violated by the delay in prosecution and by the fact that the delay had prejudiced him as it had diminished the ability of the only defense witness to recall the events on the day of the incident. Without holding a hearing, the District Court, by order dated November 6, 2009, in effect, granted defendant leave to reargue and denied, among other things, the branch of defendant's motion seeking to dismiss on the ground that his constitutional right to a speedy trial had been violated. A nonjury trial commenced on April 7, 2010, following which defendant was convicted of driving while ability impaired (Vehicle and Traffic Law § 1192 [1]). On appeal, defendant contends that the District Court improperly denied the branch of his motion seeking to dismiss on constitutional speedy trial grounds.

A determination of a constitutional speedy trial claim requires consideration of the extent, reason and nature of the delay, whether or not there has been a period of pretrial incarceration, and whether the defense has been impaired by reason of the delay (see People v Taranovich, 37 NY2d 442, 445 [1975]). Defendant has demonstrated that there was a protracted delay in the prosecution of this case and has alleged that he was prejudiced by this delay. Contrary to defendant's contention, the six-year delay between his arraignment and the commencement of his trial does not constitute a per se violation of his constitutional speedy trial right, as the Court of Appeals has emphasized that there is generally no fixed time which is per se unreasonable (see People v Decker, 13 NY3d 12, 15, [2009], citing People v Romeo, 12 NY3d 51, 56 [2009]). Moreover, while the People bear the burden of establishing good cause for a protracted delay, we find that, under the circumstances of the instant case, their failure to do so is not conclusive (see generally Matter of Benjamin L., 92 NY2d 660, 666 [1999]; People v Singer, 44 NY2d 241, 255 [1978]).

As a proper evaluation of the reasonableness of the delay and the alleged prejudice to defendant as a result of the delay is not possible on the present record, which does not include transcripts from the numerous court appearances, we vacate so much of the order dated November 6, 2009 as denied the branch of defendant's motion seeking to dismiss the accusatory instrument on constitutional speedy trial grounds and remit the matter to the District Court for a new determination, following a hearing, of defendant's constitutional speedy trial claim. The appeal is held in abeyance in the interim. The report shall be filed with all convenient speed.

Molia, J.P., Nicolai and Iannacci, JJ., concur.
Decision Date: March 08, 2012