978 N.E.2d 762
Mass.
2012

Thomas Cook appeals from a judgment of a single justice of this court denying his petition for relief under G. L. c. 211, § 3, from an interlocutory ruling of the trial court. In February, 2012, the Commonwealth filed a petition in the Superior Court pursuant to G. L. c. 123A, § 12, alleging that Cook was a sexually dangerous person. Cook filed a motion to continue the probable cause hearing, which was denied. His G. L. c. 211, § 3, petition sought relief from that denial. After Cook’s appeal from the single justice’s judgment was entered in this court, however, the c. 123A petition was dismissed on the Commonwealth’s motion because the two qualified examiners opined that Cook was not sexually dangerous. See Johnstone, petitioner, 453 Mass. 544, 553 (2009) (Commonwealth may not proceed to trial unless at least one qualified examiner opines that respondent is sexually dangerous). Accordingly, the denial of Cook’s motion to continue the probable cause hearing is moot. See, e.g., Martin v. Commonwealth, 452 Mass. 1028, 1029 (2008), citing Rasten v. Northeastern Univ., 432 Mass. 1003 (2000), cert. denied, 531 U.S. 1168 (2001) (appeal moot where relief sought could no longer be granted). The questions raised by Cook, while capable of repetition, will not necessarily evade review in future cases before becoming moot. See, e.g., Guardianship of Nolan, 441 Mass. 1012, 1013 (2004). A c. 123A petition will not necessarily be dismissed before review of the denial of a continuance occurs, as happened here. We therefore decline to exercise our discretion to consider the merits of a moot claim in the circumstances of this case.

Appeal dismissed

The case was submitted on the papers filed, accompanied by a memorandum of law. John Fennel, Committee for Public Counsel Services, for the defendant. Steven Greenbaum, Assistant District Attorney, for the Commonwealth.