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14

- P

- 1116 Appeals Court

COMM ONWEALTH vs . MICHAEL J. MELUCCI (and six companion cases 1 ).

No. 14

- P

- 1116.

Bristol. June 2, 2015.

- August 31 , 2015.

Present: Cypher, Vuono, & Grainger, JJ.

Practice, Criminal , Dismissal, Continuance.

C omplaints 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 order s of the

District Court dismissing with prejudice the complaint s against

the defendant s charging various firearms offenses. 2 We reverse.

1 Two against Michael J. Melucci and four against Joshua Weiss.

2 The defendant s were each charged with possession of a large capacity firearm pursuant to G. L. c. 269, § 10( m ) ;2

Background

. The defen d ant s were arraigned i n April , 2013 ,

and the cases were scheduled for probable cause hearings in

June , 2013. After request s 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 Septembe r , 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 F or reasons

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

dates in January, 2014, and then to February, 2014

. No

objection appears on the docket s

. At the time of the probable

cause hearing in February , 2014, the a ssistant d istrict a ttorney

assigned to the case s was on trial in Superior C ourt and was

therefore unable to appear in D istrict C our t. A different

a ssistant d istrict a ttorney 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 docket s 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 motion s to vacate

the dismissal s with supporting affidavits from the a ssistant

d istrict a ttorney assigned to the cases and defense counsel

.

The affi davits deta iled the plea negotiations between the

parties and defense counsel averred that the defendants did not

suffer any prejudice from the repeated continuance s

. The judge

denied the motion s without a hearing. The Commonwealth now

appeals. 5

Discus sion

. " Dismissal with prejudice is appropriate in

cases of egregious prosecutorial misconduct or on a showing of

prejudice (or a s ubstantial threat thereof), or irremediable

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

Commonwealth v. Her nandez , 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 a ssistant d istrict a ttorney requested that the complaints be dismissed without prej udice. After asking the clerk how many times the case s 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 p rejudice. See

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

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

. We th erefore

vacate the order s dismissing the complaint s and remand the case s

to the District Court.

So ordered

.