NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

14-P-1116 Appeals Court

COMMONWEALTH vs. MICHAEL J. MELUCCI

(and six companion cases1).

No. 14-P-1116.

Bristol. June 2, 2015. - August 31, 2015.

Present: Cypher, Vuono, & Grainger, JJ.

Practice, Criminal, Dismissal, Continuance.

Complaints received and sworn to in the Taunton Division of 

the District Court Department on April 29, 2013. 

The complaints were ordered dismissed by Gregory L. 

Phillips, J. 

Yul-mi Cho, Assistant District Attorney, for the 

Commonwealth.

CYPHER, J. The Commonwealth appeals from orders of the 

District Court dismissing with prejudice the complaints against 

the defendants charging various firearms offenses.2 We reverse. 

 

1 Two against Michael J. Melucci and four against Joshua 

Weiss.

2 The defendants were each charged with possession of a 

large capacity firearm pursuant to G. L. c. 269, § 10(m);
2

Background. The defendants were arraigned in April, 2013,

and the cases were scheduled for probable cause hearings in 

June, 2013. After requests for a continuance made by defense 

counsel, the probable cause hearings were rescheduled for 

August, 2013. Due to court congestion in August, 2013, the 

hearings were continued to September, 2013. At the September,

2013, hearing date, at least one defense attorney did not appear 

and the case was again continued to November, 2013.3 For reasons 

unclear from the docket, the hearings were then continued to two

dates in January, 2014, and then to February, 2014. No 

objection appears on the dockets. At the time of the probable 

cause hearing in February, 2014, the assistant district attorney 

assigned to the cases was on trial in Superior Court and was 

therefore unable to appear in District Court. A different

assistant district attorney appearing on behalf of the 

Commonwealth asked for a continuance, noting for the judge that

the cases were "going to be a disposition." The judge denied 

 

possession of ammunition pursuant to G. L. c. 269, § 10(h)(1);

and improper storage of a large capacity firearm pursuant to 

G. L. c. 140, § 131L(a), (b). Weiss was also charged with the

additional offense of carrying a firearm pursuant to G. L. 

c. 269, § 10(a).

3 The dockets indicate there was also court congestion on 

that date.
3

the Commonwealth's request and, sua sponte, dismissed the cases 

with prejudice for want of prosecution.4 

In March, 2014, the parties filed joint motions to vacate 

the dismissals with supporting affidavits from the assistant 

district attorney assigned to the cases and defense counsel. 

The affidavits detailed the plea negotiations between the 

parties and defense counsel averred that the defendants did not 

suffer any prejudice from the repeated continuances. The judge

denied the motions without a hearing. The Commonwealth now 

appeals.5

Discussion. "Dismissal with prejudice is appropriate in 

cases of egregious prosecutorial misconduct or on a showing of 

prejudice (or a substantial threat thereof), or irremediable 

harm to the defendant's opportunity to obtain a fair trial." 

Commonwealth v. Hernandez, 421 Mass. 272, 277 (1995) (quotation

omitted). Indeed, without such a showing, "dismissal of a 

complaint on a basis such as want of prosecution should not be 

with prejudice." Commonwealth v. Corbett, 26 Mass. App. Ct. 

773, 779 (1989). Where, as here, the defendants averred that 

 

4 The assistant district attorney requested that the 

complaints be dismissed without prejudice. After asking the 

clerk how many times the cases had been scheduled for probable 

cause hearings, the judge confirmed that he was dismissing the 

complaints with prejudice.

5 Defense counsel did not file a brief contesting the 

Commonwealth's appeal. 
4

they have not suffered any prejudice, and the judge did not make 

any findings to that effect, dismissal with prejudice was 

inappropriate. The judge's frustration with the number of 

continuances at such an early stage of the proceedings, while 

understandable, cannot alone serve as the basis for the 

draconian sanction of dismissal with prejudice. See

Commonwealth v. Connelly, 418 Mass. 37, 39 (1994); Commonwealth

v. Heiser, 56 Mass. App. Ct 917, 918 (2002). We therefore 

vacate the orders dismissing the complaints and remand the cases

to the District Court. 

So ordered.