concurrence">Benjamin, J.

(concurring). I agree completely with the learned opinion of my distinguished colleagues reversing the judgment and dismissing the indictment as wholly unsupported by the evidence. I am fully convinced, however, that the conviction is totally insupportable as a matter of law.

It is a strange scenario, reminiscent of Gilbert and Sullivan at their best. Ferdinando, an admitted, self-confessed "Ponzi” racketeer, pleaded guilty and received but a conditional discharge.

The District Attorney and others associated with his office, from whose prosecutorial activities Ferdinando sought to escape, now find themselves prosecuted by the Special Prosecutor for not having done the very thing that Ferdinando *223complained they were doing too vigorously, and have been convicted on such a charge.

The maze in Alice in Wonderland is much more easily understandable than such an absurd miscarriage of justice. Whatever else members of the Mackell organization may have been guilty of, it certainly cannot be said that they were guilty of willfully, wantonly and with criminal intent failing to zealously prosecute this criminal, who, almost literally, broke down the doors of the State and Federal courts in a frantic effort to avoid their very prosecution, which the Special Prosecutor now claims was inadequate to the point of constituting criminal nonfeasance in office.

If there was any substance to a charge that Mackell and any of his associates shared with Ferdinando the guilt of the swindler’s misconduct, they should have been indicted and prosecuted for such acts. There has been no such indictment. To claim that they did not prosecute Ferdinando upon this record is manifest absurdity.

I concur in the dismissal of the indictments for the reasons stated by my colleagues and for the views expressed herein, upon the law and the facts.

Martuscello, Acting P.J., Cohalan, Christ, Brennan and Benjamin, JJ., concur in Per Curiam opinion; Benjamin, J., with a separate concurring opinion.

Judgments of the Supreme Court, Queens County, rendered April 22, 1974, reversed, on the law and the facts, and indictment dismissed.

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