We granted the defendant's application for further appellate review in this case that was decided in the Appeals Court by an unpublished memorandum and order pursuant to its rule 1:28. Rowley v. Kovalchuk, 49 Mass. App. Ct. 1113 (2000). The case involves the lawfulness, under applicable zoning laws and regulations, of the defendant's use of his land for the operation of a sawmill. The case is an appropriate one for summary judgment. The nature of the question in controversy - the lawfulness of the use - is intensely fact specific. Based on the undisputed material facts set forth by the Superior Court judge in her written memorandum of decision, we agree with the reasoning and conclusion of the Appeals Court that the defendant's operation of the sawmill is not lawful as incident to a permitted agricultural use. The permanent injunction barring the defendant from operating a sawmill at the site is affirmed.

So ordered.

Donald K. Freyleue for the defendant.

Donna Gorshel Cohen for the plaintiff.

Sang Hoa Duong (defendant) has appealed from a judgment entered by a single justice of this court denying his petition under G. L. c. 211, s. 3, for a stay of execution of sentence pending appeal. The case requires us to review the procedural framework for requesting and appealing from the denial or grant of a stay of execution of sentence pending appeal. Because a single justice of the Appeals Court has previously denied the requested stay and because the defendant's appeal from his convictions is pending in the Appeals Count, we conduct only a preliminary review of our single justice's decision for errors of law. Based on this review, we conclude that the single justice of this court did not err in denying the defendant's petition.

We begin with a review of the procedural history in this case. In October,

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1999, a jury convicted the defendant of armed robbery, assault and battery by means of a dangerous weapon, and receiving stolen property. The judge sentenced the defendant to a period of imprisonment, and the defendant filed a timely notice of appeal. In February, 2000, the defendant filed, and the trial judge denied, a motion to stay the execution of the sentence. On May 15, 2000, the defendant filed in the Appeals Court a motion to stay execution of sentence pending appeal. A single justice of the Appeals Court denied the motion. The defendant then filed, pursuant to G. L. c. 211, s. 3, and Mass. R. A. P. 6 (a), as amended, 378 Mass. 930 (1979) [Note 1], his petition for a stay of execution of the sentence in the county court. The single justice denied his petition, and it is that denial that is before us.

The general framework for requesting a stay of execution of sentence is set forth in Mass. R. Crim. P. 31 (a), 378 Mass. 902 (1979) [Note 2], rule 6 (a), Commonwealth v. Hodge (No. 1), 380 Mass. 851, 852-854 (1980), and Commonwealth v. Allen, 378 Mass. 489, 497-498 (1979). Ordinarily, the defendant should file such a motion in the first instance with the sentencing judge. Id. at 497. If a sentencing judge denies the application for a stay, a new application for a stay may be submitted to a single justice of the Appeals Court or of this court [Note 3]. See id. (if applicant files such application directly with single justice of this court, and the case is one which will be decided by the Appeals Court, the application will ordinarily be transferred to the Appeals Court). "If a stay has been denied both by the sentencing judge and by a single justice of the Appeals Court, the applicant may seek review of questions of law by a panel of the Appeals Court." Id. Although a single justice of this court "has jurisdiction to consider a new application for stay" after denial of a stay by a single justice of the Appeals Court, this jurisdiction "is rarely exercised while further consideration by the Appeals Court is in prospect [Note 4]." Id. See Commonwealth v. Aviles, 422 Mass. 1008, 1008-1009 (1996) (discussing discretion of single justice of this court to consider new application for stay prior to review of decision of single justice of Appeals Court by panel of that court).

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In the ordinary course of events, where a stay has been denied by the trial judge and a single justice of the Appeals Court, the presumptive avenue for review is before a panel of the Appeals Court. Commonwealth v. Allen, supra at 497. If, after review for errors of law, the panel denies relief, the defendant may apply to this court for further appellate review. G. L. c. 211 A, s. 11. Commonwealth v. Allen, supra at 496 [Note 5]. In the present case, after being denied relief by the trial judge and a single justice of the Appeals Court, the defendant filed a new application for a stay of execution of sentence pending appeal in the single justice session of this court. Because the defendant could have sought review of the decision of the single justice of the Appeals Court by a panel of that court, we review summarily the decision of the single justice of this court for errors of law. Cf. id. at 497-498 (summary review appropriate for new applications submitted to single justice of this court after review, and denial of relief, by panel of the Appeals Court).

Our limited review of the decision of the single justice of this court and the record before him leaves us satisfied that he did not err in denying a stay. There was no error of law in his conclusion that the defendant did not have a "reasonable possibility of a successful decision" on appeal. Commonwealth v. Hodge (No. 1), supra at 855, quoting Commonwealth v. Allen, supra at 498 [Note 6].

Judgment affirmed.

David Duncan for the defendant.

James W. Sahakian, Assistant District Attorney, for the Commonwealth.