¶1concurring specially. I write specially because I disagree with the majority on part one of the Barker analysis.
¶2Under Barker v. Wingo, 407 U.S. 514, 530 (1972), initially, we must determine the length of the delay. Here, the State entered a nolle prosequi on January 14, 2002, and filed a new complaint on May 15, 2002. While the State has broad discretion to nolle prosse, its discretion “is not unlimited, for the trial courts are empowered to curb that discretion where it is used to inflict confusion, harassment, or other unfair prejudice upon a defendant.” State v. Courtemarche, 142 N.H. 772, 774 (1998).
¶3The majority’s statement that “[t]he court has no right to interfere in [the State’s] exercise [of a nolle prosequi],” while accurate, fails to give enough deference to our ability to judge “the effect of the act, when done, or, of the legal consequences, which may follow from it.” State v. Pond, 133 N.H. 738, 741 (1990). When the State attempts to exercise its discretion to nolle prosse with impunity, we should exercise our judgment to determine the legal consequences of its decision. See id.
¶4Where the State’s decision to nolle prosse lacks good faith, the time between the nolle prosequi and the refiling of charges must count toward our speedy trial analysis. See State v. Adams, 133 N.H. 818, 823 (1991). Here, because I believe the nolle prosequi was entered to avoid the *296consequences of either the granting of a motion to continue, for which speedy trial time would continue to run, or the denying of the motion to continue, which would require the State to proceed to a trial for which it was not prepared, the State’s decision to nolle prosse lacked good faith. While the State has the discretion to nolle prosse, it must face the legal consequences of its decision. See Pond, 133 N.H. at 741. Therefore, here, regardless of the exact arrest date, the approximate delay of ten months between the defendant’s arrest and the trial date was presumptively prejudicial. Cf. State v. Bain, 145 N.H. 367, 374 (2000); SUPER. Ct. R. App. (Superior Court Speedy Trial Policy).
¶5Although I would find a longer delay, the only result of the delay was the dimming of the memory of an alibi witness, which alone is insufficient to constitute prejudice. See State v. Locke, 149 N.H. 1, 10 (2002). Therefore, after balancing the four Barkerfactors, I agree that the defendant’s right to a speedy trial was not violated. Accordingly, I concur in the result.