Rosenblatt, J., dissents, and votes to reverse the judgment and dismiss the indictment, with the following memorandum: It took almost three years to bring the defendant to trial. Under the facts of this case, the delay is too long to abide due process criteria, and I therefore respectfully dissent.
The defendant was arraigned on a felony complaint on December 7, 1984. Thirty-five months later, on October 30, 1987, he was brought to trial, but not before he made two speedy trial motions and the prosecution resubmitted the case to the Grand Jury twice.
While most cases involve motion practice that occasions a *751measure of excludable delay, the case before us is out of the ordinary. The prosecution brought two faulty indictments, leading, understandably, to defense challenges and speedy trial motions. Given the extraordinarily large volume of cases prosecuted in the courts, it is understandable and almost inevitable that mistakes and delays occur, even with the most fastidious prosecutorial monitoring. The defense did not occasion the delays involved here. Under the circumstances, it is unfair to charge the prosecution with only a small fraction of the delay, particularly when the prosecution took weeks to respond to legitimate motions occasioned by its own flawed pleadings.
In July 1985 approximately seven months after the defendant’s arraignment on the felony complaint, the court dismissed the first indictment because the prosecution failed to instruct the Grand Jury on justification. After filing a new indictment in August 1985 the defendant was arraigned on the new indictment, but one year later, having declared itself ready, the prosecution sought leave to amend the second indictment because it charged assault in the second degree rather than assault in the first degree. When the court refused, the prosecution did not proceed to trial on the charge of assault in the second degree. Instead, it returned to the Grand Jury, and, in September 1986 filed yet another indictment charging the defendant with assault in the first degree.
Under CPL 30.30 it is necessary to tabulate whether the defendant was brought to trial within 182 “chargeable” days, as part of the delay of over 1,000 days involved here. In the final tally, if one accepts the reasoning of the majority, the prosecution made it, figuratively, by a hair — a matter of hours —under the statutory wire. I have no quarrel with those calculations, but I stress the difference between the statutory criterion which necessarily entails an account ledger methodology, and the concept of constitutional due process, which rests on general concepts of fairness.
In all, the reasons offered by the prosecution are insufficient to override the defendant’s due process claims under the New York State Constitution (NY Const, art 1, § 6; People v Staley, 41 NY2d 789).