Restucci v. Appeals Court
Restucci v. Appeals Court
Opinion of the Court
William Restucci appeals from an order of a single justice of this court denying, without a hearing, relief in the nature of mandamus. Restucci sought
Mandamus “will not issue to direct a judicial officer to make a particular decision or to review, or reverse, a decision made by a judicial officer on an issue properly before him or her.” Callahan v. Superior Court, 410 Mass. 1001, 1001 (1991), and cases cited. The single justice therefore properly declined to compel the Appeals Court to allow Restucci’s motion. See id. See also Stewart, petitioner, 411 Mass. 566, 569 (1992) (“petitioner may not bring his rule 30 motion directly to this court, but rather must file it in the Superior Court”; “[h]is proper course now is to pursue his appeal from the denial of that motion in the Appeals Court”).
Moreover, mandamus is “extraordinary and may be granted only to prevent a failure of justice in instances where there is no alternative remedy.” Callahan v. Superior Court, supra, and cases cited. Rule 30 contemplates that motions for discovery in connection with a new trial motion be filed in the first instance in the trial court — where that new trial motion is pending — and not in an appellate court. Mass. R. Crim. P. 30, 378 Mass. 900 (1979), and as appearing in 435 Mass. 1501 (2001). No “failure of justice” is present in this case requiring extraordinary relief. See Stewart, petitioner, supra; McCastle, petitioner, 401 Mass. 105, 107 (1987) (“the Legislature could fairly conclude that it is in the best interests of a defendant, as well as of the Commonwealth, that [a] rule 30 motion is heard at the trial court level”).
The single justice’s decision denying relief in the nature of mandamus is affirmed.
So ordered.
The underlying appeal has been decided and the order denying the motion for a new trial was affirmed. Commonwealth v. Restucci, 51 Mass. App. Ct. 1111 (2001).
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