                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 22, 2015                   517013
________________________________

In the Matter of STEVEN
   RACETTE, as Superintendent
   of Great Meadow Correctional
   Facility,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

RAFAEL MESSA,
                    Appellant.
________________________________


Calendar Date:   November 14, 2014

Before:   Lahtinen, J.P., McCarthy, Egan Jr. and Devine, JJ.

                             __________


      Sheila E. Shea, Mental Hygiene Legal Service, Albany
(Shannon Stockwell of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Martin A.
Hotvet of counsel), for respondent.

                             __________


Egan Jr., J.

      Appeal from an order of the Supreme Court (Clark, J.),
entered January 14, 2013 in Washington County, which granted
petitioner's application, in a proceeding pursuant to CPLR
article 4, to authorize the involuntary medical treatment and
feeding of respondent.

      Respondent is a prison inmate serving an extended period of
incarceration in the custody of the Department of Corrections and
Community Supervision. On December 9, 2012, while incarcerated
at Upstate Correctional Facility in Franklin County, respondent
began a hunger strike. Five days later, respondent was
                              -2-                517013

transferred to Great Meadow Correctional Facility in Washington
County in order to receive additional services that were not
available at Upstate. While at Great Meadow, respondent
continued his hunger strike1 – consuming only ice chips and
water. According to the facility's medical director, respondent
indicated that he could not eat due to untreated medical
conditions that caused him to experience great pain whenever he
ingested solid food. In response, respondent was offered various
medications, as well as the option of obtaining a second opinion
and receiving treatment at an outside hospital, all of which
respondent refused.

      Citing both respondent's alarming weight loss and the
state's compelling penological interests, petitioner commenced
this proceeding in January 2013 seeking, among other things,
authorization to force feed respondent. During the course of the
hearing that followed, at which petitioner, respondent and the
facility medical director appeared and testified, counsel for
respondent sought to introduce uncertified copies of respondent's
facility medical records into evidence. When this effort proved
to be unsuccessful, counsel for respondent requested an
opportunity to obtain certified copies of those records; citing
the imminent risk to respondent, counsel for petitioner asked
that Supreme Court decline to reserve decision and, instead,
issue the requested order forthwith. Recognizing the expedited
nature of the proceeding and rightfully concerned that any delay
could result in grave consequences for respondent, Supreme Court
– relying upon the testimony adduced at the hearing – granted
petitioner's application and issued the requested order. In so
doing, however, Supreme Court informed respondent that, upon
request, the court would issue a judicial subpoena for
respondent's medical records and, further, would permit


    1
        Pursuant to Department of Corrections and Community
Supervision Directive No. 4309, an inmate will be deemed to be on
a hunger strike whenever such inmate "has refused to eat for
three consecutive days." Both petitioner and Great Meadow's
medical director refined this definition somewhat, stating that
an inmate will be found to be on a hunger strike whenever he or
she has missed nine consecutive meals.
                                -3-                517013

respondent to pursue additional relief from the court, i.e., a
motion to vacate or similar application, at a later date if he so
desired.2 Nothing in the record suggests that respondent sought
to avail himself of the avenues of relief offered by Supreme
Court. Respondent now appeals, contending only that Supreme
Court abused its discretion when it denied his request for a
continuance in order to obtain certified copies of his medical
records.

      The record reflects that the order authorizing the force
feeding of respondent expired by its own terms in January 2014.
Additionally, the parties acknowledged at oral argument that,
after the subject order was issued (and consistent with his
testimony as the underlying hearing), respondent voluntarily
began consuming liquid nutritional supplements, thereby rendering
force feeding unnecessary. Accordingly, respondent's present
claim – that he should have been granted a continuance – is moot
(see Matter of Bezio v Dorsey, 91 AD3d 1051, 1052 [2012], affd 21
NY3d 93 [2013]). As this particular contention does not fall
within the exception to the mootness doctrine (see Matter of
Bezio v Dorsey, 21 NY3d 93, 98 n 4 [2013]), the appeal is
dismissed.

        Lahtinen, J.P., McCarthy and Devine, JJ., concur.




    2
        The need for the procedural accommodations fashioned by
Supreme Court would have been unnecessary if petitioner, who
certainly was well aware that respondent's medical condition
would be the central issue at the hearing, had simply appeared at
the expedited hearing with respondent's complete medical file.
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      ORDERED that the appeal is dismissed, as moot, without
costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
