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SJC

- 11953

ABINEL ZENON vs . COMMONWEA LTH.

February 4 , 2016.

Supreme Judicial Court , Superintendence of inferior courts.

Abinel Zenon appeals from a judgment of a single justice of this court denying his petition for relief from a protective

order issued by a judge in the District Court

. Zenon was charged wit h assault and battery and other offenses. He sought
certain third

- party records in support of his claim that the alleged victim was in fact the first aggressor. See

Commonwealth v. Adjutant , 443 Mass. 649 (2005). The judge
issued the protective order concerning these records , apparently following the Dwyer protocol. Commonwealth v. Dwyer , 448 Mass. 122, 139

- 147 (2006). See id . at 147

- 150 (Appendix). Zenon
filed various motions in the District Court for relief from the protective order; these motions were only partially successful. Zenon's petition followed. T reating the petition as one filed pursuant to G. L. c. 211, § 3, t he single justice denied relief without a hearing. Zenon has since pleaded guilty to the charges. 1 We affirm the judgment of the single justice

.

Zenon has filed a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001)
, which requires a petitioner see king relief from an interlocutory ruling of the trial court to "set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by
other available means." Passing t he question whether the rule applies here, where the criminal case was resolved after the single justice made her decision , it is clear that Zenon ha d an

1 One charge was dismissed.adequate alternative remedy

. At the time of the single

justice's decision, the charges were still pen ding. Had Zenon been tried and convicted of any offense, he could have challenged the protective order on direct appeal. See Rodriguez

v. Commonwealth , 449 Mass. 1029, 1030 (2007) (discussing postconviction relief available under Dwyer protocol). If Zen on believes that the records have any continuing significance n ow that the charges have been resolved, he could move in the
District Court for termination or modification of the protective order and, if such a motion is denied, appeal in the ordinary

cours e from that ruling. Similarly
, if he has a basis to do so,

Zenon remains free to file a motion for a new trial pursuant to Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001) , and to appeal from any adverse ruling thereon. " The court's extraordinary power of general superintendence under c. 211,
§ 3, is ' exercised sparingly, not as a substitute for the normal appellate process or merely to provide an additional layer of appellate review after the normal process has run its co urse. '" Doyle v. Commonwealth , 472 Mass. 1002, 1003 (2015), quoting
Norris v. Commonwealth , 447 Mass. 1007, 1008 (2006)

.

Judgment affirmed

.

The case was submitted on the papers filed, accompanied by

a memorandum of law.

Dana Goldblatt for the petitioner

.