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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.
