Raymond Colon purports to appeal from the judgment of a single justice of this court pursuant to the gatekeeper provision of G. L. c. 278, § 33E, denying leave to appeal from the denial of his fourth motion for a new trial on charges of murder in the first degree and other offenses. [Note 1] The single justice also denied Colon's two ancillary motions to transfer his gatekeeper petition, either to the full court or to the Superior Court. The Commonwealth has moved to dismiss the purported appeal. [Note 2] We agree that the appeal must be dismissed, as it is well established that the decision of the gatekeeper is final and unreviewable. See, e.g., Commonwealth v. Robinson, 477 Mass. 1008, 1008 (2017), cert. denied, 537 U.S. 980 (2018). In addition, in the circumstances of this case, there was no error or abuse of discretion in denying the ancillary motions. His ancillary motions had no "realistic potential for demonstrating the existence of a new and substantial question appropriate for appeal," Parker v. Commonwealth, 448 Mass. 1021, 1023 (2007), quoting Fuller v. Commonwealth, 419 Mass. 1002, 1003 (1994), particularly as it appears that Colon raised the same claim in his fourth motion -- that the court room was improperly closed during jury selection -- as he did in a prior motion. In sum, no appeal lies from the judgment of the single justice.

Appeal dismissed.

The case was submitted on briefs.

Raymond Colon, pro se.

Katherine E. McMahon, Assistant District Attorney, for the Commonwealth.

Elson Debarros appeals from a judgment of the county court denying his petition for relief under G. L. c. 211, § 3. Debarros was tried in the District Court on the charge of accosting and annoying a person of the opposite sex. G. L. c. 272, § 53. The jury were unable to reach a unanimous verdict, and the judge declared a mistrial. Debarros moved to dismiss on the ground that the evidence

Page 1033

was insufficient to warrant a conviction. That motion was denied, and Debarros's G. L. c. 211, § 3, petition sought relief from that denial.

Shortly after the single justice denied relief, the criminal charge was dismissed for lack of prosecution. The Commonwealth has therefore moved to dismiss this appeal as moot. We agree that the appeal must be dismissed. Where the underlying criminal case has been dismissed, there are no charges pending against Debarros, and he "no longer has a personal stake in the outcome of this litigation." Matter of Rudnicki, 421 Mass. 1006, 1007 (1995), quoting Delaney v. Commonwealth, 415 Mass. 490, 492 (1993). The dismissal of the charge, "in effect, rendered moot any defects in the underlying proceedings." Burns v. Commonwealth, 430 Mass. 444, 447 (1999). Moreover, the issues raised by Debarros in his G. L. c. 211, § 3, petition, "while capable of repetition, will not necessarily evade review in future cases before becoming moot." Cook v. Commonwealth, 463 Mass. 1014, 1014 (2012), citing Guardianship of Nolan, 441 Mass. 1012, 1013 (2004).

Appeal dismissed.

The case was submitted on briefs.

Ilya Liviz for the petitioner.

Hallie White Speight, Assistant District Attorney, for the Commonwealth.