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SJC-11953

                 ABINEL ZENON   vs.   COMMONWEALTH.


                         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 with 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. Treating the petition as one filed
pursuant to G. L. c. 211, § 3, the 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 seeking 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 the question whether the rule
applies here, where the criminal case was resolved after the
single justice made her decision, it is clear that Zenon had an

    1
        One charge was dismissed.
adequate alternative remedy. At the time of the single
justice's decision, the charges were still pending. 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 Zenon
believes that the records have any continuing significance now
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
course 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 course.'"
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.
