LAVADUS WILLIAMS VS. COMMONWEALTH

Lavadus Williams (petitioner) appeals pursuant to S.J.C. Rule 2:21, 421 Mass. 1303 (1995), from the denial by a single justice of this court of a petition for relief under G. L. c. 211, s. 3. A Superior Court judge had denied, in part, a motion entitled "Suppression of One-On-One Identification"; and had denied a "Motion to Dismiss for Failure to Provide Discovery," a "Motion to Dismiss In Opposition of Commonwealth's Motion to Dismiss or Nolle Prosequi," and a motion to dismiss pursuant to Mass. R. Crim. P. 36, as amended, 422 Mass. 1503 (1996).

We consider those denials to be interlocutory rulings for purposes of rule 2:21 (1), and consider whether the petitioner has met the requirement of rule 2:21 (2), that he "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." The petitioner asserts, for example, that he will not have an avenue for redress of the Commonwealth's failure to provide discovery and that it would be a miscarriage of justice if the Commonwealth were able to proceed with the nolle prosequi, followed by trial on an expanded "reindictment." Nevertheless, the petitioner has not met his burden under rule 2:21 (2), because it may be possible to obtain relief on appeal or by other means. See Commonwealth v. Hinterleitner, 391 Mass. 679 (1984) (nolle prosequi in District Court followed by indictments, this court answered reported question); Commonwealth v. Raposa, 386 Mass. 666 (1982) (arraignment in District Court followed by indictments, and then by nolle prosequi in District Court, Superior Court judge denied motion to dismiss and

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reported the case); Commonwealth v. Thomas, 353 Mass. 429 (1967) (nolle prosequi followed by indictment and defendant's motion to dismiss, this court answered reported question); Commonwealth v. Silva, 10 Mass. App. Ct. 784 (1980) (on appeal from Superior Court conviction, court reviewed trial judge's denial of motion to dismiss indictment based on District Court judge's previous dismissal of complaint).

Judgment affirmed.