In the Matter of Norman Bezio,, Respondent,v.Leroy Dorsey, Appellant.BriefN.Y.March 19, 2013To be argued by: Shannon Stockwell, Esq. Time Requested: 10 minutes STATE OF NEW YORK COURT OF APPEALS In the Matter of NORMAN BEZIO, as Superintendent of Great Meadow AD # 511234 Correctional Facility, Respondent, Washington County v Index No.: 18061 LEROY DORSEY, Appellant. BRIEF FOR APPELLANT Mental Hygiene Legal Service Third Judicial Department Sheila E. Shea, Director Attorneys for Appellant - Leroy Dorsey 40 Steuben Street, Suite 501 Albany, New York 12207 Tel: (518) 451-8710 Fax: (518) 473-5849 Date: August 7, 2012 (i) TABLE OF CONTENTS PRELIMINARY STATEMENT 1 QUESTIONS PRESENTED 1 STATEMENT OF FACTS AND PROCEDURAL HISTORY 2 STATEMENT OF JURISDICTION 9 ARGUMENT POINT ONE 10 SUPREME COURT WAS NOT AUTHORIZED TO ORDER THE FORCE FEEDING OF RESPONDENT BECAUSE HE HAS CAPACITY TO MAKE HIS OWN MEDICAL TREATMENT DECISIONS AND BECAUSE THE STATE DID NOT DEMONSTRATE AT TRIAL THAT ITS INTERESTS ARE SUPERIOR TO RESPONDENT'S PRIVACY INTEREST A . Because respondent has capacity to make his own treatment decisions, the State's parens patriae power is not implicated in this case 11 B . The State failed to demonstrate at trial that its interests are superior to respondent's privacy interests 13 C . Von Holden v Chapman, 87 AD2d 66 (4th Dept 1982) is no longer controlling, and in any event, can be distinguished on its facts 18 D . A review of inmate force feeding cases from other jurisdictions discloses persuasive authority 22 (ii) TABLE OF CONTENTS (cont'd) POINT TWO .26 SUPREME COURT DEPRIVED RESPONDENT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL WHEN IT DENIED RESPONDENT'S REQUEST FOR A CONTINUANCE CONCLUSION 30 ADDENDUM Decision and Order, Artus v Dorsey, Sup Ct, Clinton County, April 8, 2010, Ryan, AJ.S.C, Index No. 10-0492 Adden-01 (iii) TABLE OF AUTHORITIES Federal Cases Matter of Grand Jury Subpoena John Doe v United States, 150F3dl79(2dCirl998) 23 Turner v Safley, 482 US 78 (1987) 22nl 1 State Cases Artus v Dorsey, Sup Ct, Clinton County, April 8, 2010, Ryan, AJ.S.C, Index No. 10-0492 2n4,21 Matter of Anthony H. [Karpati], 82 AD2d 1240 (2nd Dept 2011), Iv denied 17 NY3d 708 (2011) 8 Matter of Carrie B. v Josephine B., 81 AD3d 1009 (3d Dept 2011) 2n4 Matter ofChloe Q., 68 AD3d 1370 (3d Dept 2009) 3n4 Matter of Fosmire v Nicoleau, 75 NY2d 218(1990) passim People v McGuinness, 9 NY2s 690 (1961) 27 People v McLaughlin, 291 NY 480 (1944) 26, 30 People v Snyder, 297 NY 81 (1947) 26 Rivers v Katz, 67NY2d485 (1986) passim Von Holden v Chapman, 87 AD2d 66 (4th Dept 1982) passim Other Jurisdictions Commissioner of Correction v Coleman, 303 Conn 800, 38 A3d 84(2012) .... 22 In re Caulk, 125 NH 226, 480 A2d 93 (1984) 23, 24nl4 Hill v Department of Corrections, 992 Aid 933 (2010) 24, 24n 15 Laurie v Senecal, 666 A2d 806 (1995) 24 McNabb v Department of Corrections, 163 Wash 2d 393, 180 P3d 1257 (2008) 23, 23nl2 People ex rel. Illinois Department of Corrections v Fort, 352 111 App 3d 309, 815 NE2d 1246 (2004) 23 People ex rel. Illinois Department of Corrections v Millard, 335 111 App 3d 1066, 782 NE2d 966 (2003) 23, 23nl3 Schuetzle v Vogel, 537 NW2d 358 (1995) 25 Singletary v Costello, 665 So2d 1099 (1996) 18, 25, 25nl6 (iv) TABLE OF AUTHORITIES (cont'd) State ex rel. White v Narrick, 170W Va 195, 292 SE2d 54 (1982) 23 Zant v Prevatte, 248 Ga 832, 286 SE2d 715 (1982) 25 Statutes CPLR § 5602(a) 9 §5611 9 Public Health Law § 2504 14n6 § 2805-d 14n6 Session Laws L2011,ch62 Inl PRELIMINARY STATEMENT This is an appeal from the January 12, 2012 Memorandum and Order of the Appellate Division, Third Department which affirmed the November 23, 2010 Order of Supreme Court, Washington County (Hall, J.) which gave the Department of Correctional Services1 authority to force feed Leroy Dorsey (hereinafter "respondent"),2 an inmate in DOCCS custody. Respondent argues in this appeal that Supreme Court was not authorized, as a matter of law, to order the force feeding of respondent because he has capacity to make medical treatment decisions for himself and because the State did not demonstrate at trial that its interests are superior to respondent's privacy interest. In addition, respondent argues that Supreme Court deprived respondent of his due process right to a fair trial when it denied respondent's attorney's request for a continuance so that he could represent respondent adequately at the hearing in this matter. QUESTIONS PRESENTED 1 . Whether Supreme Court was authorized to order the force feeding of an inmate in DOCCS custody when the inmate has capacity to make his own medical 1 Effective March 31, 2011, the Department of Corrections and the Department of Parole merged and the resulting agency is the Department of Corrections and Community Supervision (hereinafter "DOCCS") (see L 2011, ch 62). 2 Leroy Dorsey will be referred to as "respondent" throughout this brief because that was his party status in the underlying proceeding. 1 treatment decisions and the State did not demonstrate at trial that its interests are superior to the inmate's privacy interest. The Appellate Division answered this question in the affirmative, but did not specifically address respondent's argument that the State's interests must be demonstrated at trial. 2 . Whether in denying respondent's attorney's request for a continuance, Supreme Court deprived respondent of his due process right to a fair trial. The Appellate Division did not consider this question, finding that it was rendered moot by the expiration of Supreme Court's order. STATEMENT OF FACTS AND PROCEDURAL HISTORY Respondent, an inmate in DOCCS custody, commenced a hunger strike around October 22, 2010 while at Great Meadow Correctional Facility (R 57).3 Respondent had previously engaged in hunger strikes at Clinton Correctional Facility in January, 2010 (R 83) and at Great Meadow Correctional Facility in June, 2010 (R 57).4 Being aware of DOCCS' policies with respect to hunger 3 «r>"R" references are to the record on appeal. 4 As a result of respondent's hunger strike at Clinton Correctional Facility, DOCCS commenced a force feeding proceeding in Clinton County Supreme Court. On April 8, 2010, Supreme Court, Clinton County, Ryan, J., denied DOCCS' petition {see Artus v Dorsey [Sup Ct, Clinton County, April 8,2010, Ryan, J., Index No. 10-0492] - attached as the Addendum to this brief at Adden 01-05). Respondent respectfully requests that the Court take judicial notice of this prior proceeding between the parties {see Matter of Carrie B. v Josephine J5., 81 AD3d 1009 [3d 2 strikes, respondent engaged in the October 22, 2010 hunger strike in order to force DOCCS to commence a court proceeding to obtain a force feeding order. Respondent's objective was to obtain a forum in which he could voice his concerns over his treatment by DOCCS and effect his transfer to another correctional facility (R 59, 99, 102, 105). On November 22, 2010, the State commenced this proceeding in Washington County Supreme Court by Order to Show Cause and verified Petition (R 18, 20). The Order to Show Cause appointed the Washington County Public Defender as counsel to respondent (R 19). The Order to Show Cause and Petition were filed in the Washington County Clerk's Office on November 22, 2010 at 4:07 p.m. (R 18). The hearing in this matter took place the next morning, on November 23, 2011 at 9:30 a.m. (R 18, 40). At the hearing, the State presented the testimony of David Karandy, M.D., the Facility Health Services Director/Medical Director at Great Meadow Correctional Facility, where respondent was incarcerated at the time of this proceeding (R 54, 57). Doctor Karandy testified regarding DOCCS' hunger strike policies (R 60- 61) and respondent's medical condition as it relates to the hunger strike (R 61- 63). Karandy described the force feeding procedure utilizing a nasogastric Dept 2011]; Matter ofChloe 0., 68 AD3d 1370 [3d Dept 2009]). 3 tube and the possible risks and benefits of force feeding respondent via the nasogastric tube (R 63-65). Karandy opined that the possible benefits of force feeding respondent via a nasogastric tube outweighed the possible risks (R 65). Karandy indicated that there are no less intrusive means of treating respondent, that the treatment is narrowly tailored to achieve the desired benefits for respondent, and that it is in respondent's best interests to be force fed via a nasogastric tube (R 66). Karandy opined that respondent's prognosis without treatment is death, and that with treatment the facility "can correct his fluid and electrolyte abnormalities and reverse the starvation and the weight loss that have occurred" (R 67). When the State's attorney attempted to elicit testimony from Karandy regarding the impact of respondent's hunger strike upon institutional order, and upon the health and safety of other inmates, respondent's counsel objected on the grounds that DOCCS is required to provide care to inmates irrespective of respondent's actions and Supreme Court sustained the objection (R 72). After some colloquy with the court, respondent was permitted to cross-examine Karandy pro se (R 67-69, 74-79). Karandy confirmed that giving respondent the liquid nutritional supplement "Ensure" as respondent requested would alleviate respondent's medical conditions relative to the hunger strike (R 4 77). Karandy testified, however, that a DOCCS written policy would not permit it (R 77). Specifically, Karandy testified: "It is actually an official written policy of the Department of Corrections that if a person is engaging in a hunger strike and is willfully manipulating their diet to achieve means, they will not prolong these endeavors by supplying that individual with extra means of Ensure or extra means of nutritional supplement, i.e. Ensure" (R 78). After respondent asked his attorney to take over cross-examination of Karandy (R 79), respondent's attorney requested a continuance in order to give him time to review the "mountain of paperwork" that respondent had with him in court (R 80). Respondent's attorney indicated that a continuance would enable him to make a "better and more adequate response" to Karandy's testimony and to permit an exploration of the use of Ensure as a less intrusive method of feeding respondent (R 80-81). Supreme Court responded that the request for a continuance was premature (R 81). Under cross-examination, Karandy confirmed that he did not bring respondent's medical records with him to court and that the medical records were not available for review on the day of the hearing (R 53). Based on that, respondent's counsel asserted "I cannot fully cross-examine this witness without my client's full and complete medical file available and accessible to us for this 5 matter " (R 86). Supreme Court responded: "I'll take that under advisement" and then immediately asked the State's attorney if he had any questions for redirect (R 86-87). Following a single question on re-cross examination (R 88-89), respondent's attorney reiterated his request for a continuance, indicating "I can't adequately cross-examine this witness and [respondent] can't adequately make a presentation to this Court without access to the medical records and perhaps even viewed by a medical expert..." (R 89). Supreme Court did not address this third request for a continuance at the time it was made, but rather commenced its own examination of Karandy (R 89-90). After the State rested (R 90), respondent testified on his own behalf regarding the reasons for his hunger strike. Specifically, respondent testified about physical abuse of inmates within the confines of DOCCS, including his own (R 99-102). Respondent also testified regarding DOCCS' refusal to give him a "breathing machine" that he is required to wear on his face at night (R 97).5 Following respondent's testimony, Supreme Court denied respondent's attorney's request for a continuance despite acknowledging that "unfortunately Mr. Jones 5 Presumably, respondent was referring to a "continuous positive airway pressure " or CPAP machine that is used to treat sleep apnea. 6 didn't have the opportunity to review the medical records" (R 102). Supreme Court then rendered its decision, granting DOCCS the authority to force feed respondent by means of nasogastric tube or whatever means DOCCS deems necessary for a period of one year, subject to extension on notice to respondent with an opportunity to be heard (R 104, 108). Supreme Court issued an Order memorializing its decision on the same day of the hearing, November 23, 2010 (R 12). The Order provides, in part: "DOCS is authorized to force feed Leroy Dorsey, DIN 97-A-3442, by means of nasogastric tube feeding, gastronomy tube feeding, and/or central line/intravenous feeding, when his condition so requires unless Respondent consumes Ensure and available food or other recommended nutritional supplement voluntarily" (R 13 - emphasis in original deleted). On appeal, respondent argued that Supreme Court could not grant DOCCS the authority to force feed him because he has capacity to make his own medical treatment decisions and because the State did not demonstrate that its interests are superior to respondent's interests at trial. Respondent also argued that Supreme Court abused its discretion in denying respondent's attorney's request for a continuance. The Appellate Division did not address respondent's arguments that: 1) Supreme Court abused its discretion by denying his request for a continuance, and 7 2) the record did not support a finding that respondent's life was at risk. The Appellate Division found those two arguments moot because Supreme Court's order expired on November 23, 2011, respondent had been transferred to another correctional facility and respondent had been consuming solid foods voluntarily since Supreme Court issued its order (R 5-6). However, the Appellate Division addressed respondent's argument that Supreme Court was without legal authority to direct his force feeding under the exception to the mootness doctrine {see id, citing Fosmire v Nicoleau, 75 NY2d 218 [1990] and Matter of Anthony H. [Karpati], 82 AD2d 1240 [2nd Dept 2011], Iv denied 17 NY3d 708 [2011]). In its Memorandum and Order of January 12, 2012, the Appellate Division affirmed Supreme Court's force feeding order, finding that the State's interests in: 1) protecting the health and welfare of persons in its care and custody, 2) prevention of suicide, and 3) maintaining rational and orderly procedures in its facilities, outweigh respondent's privacy interest. The Appellate Division did not specifically address respondent's argument that Supreme Court was not authorized to direct his force feeding because the State did not demonstrate at trial that its interests are superior to respondent's interests. By its Order of June 7, 2012, the Court granted respondent's motion for leave to appeal (R 3). 8 STATEMENT OF JURISDICTION The Court has jurisdiction over this proceeding under CPLR 5602(a) because it originated in Supreme Court (R 18), and the appeal is from an order of the Appellate Division, Third Department which finally determined the proceeding and which is not appealable as of right. The Third Department's January 12, 2012 Memorandum and Order, which affirmed Supreme Court's Order of November 23, 2010, disposed of all issues in the proceeding within the meaning of CPLR 5611 (R 4-8). Appellant sought leave to appeal on a timely basis and the Court granted respondent's motion for leave to appeal by Order dated June 7, 2012 (R 3). The Court may consider the question of whether Supreme Court had legal authority to order the force feeding of a mentally competent inmate because respondent opposed the State's force feeding petition and Supreme Court conducted a hearing on the State's petition (R 39). Being dissatisfied with Supreme Court's order of November 23, 2010, respondent took an appeal, fully briefing this issue, and the Appellate Division affirmed Supreme Court's order by its Memorandum and Order of January 12, 2012 (R 8). This Court may consider the question of whether appellant was deprived of his due process right to a fair trial due to Supreme Court's denial of his request for a continuance because respondent's request for a continuance was made and 9 Supreme Court denied the request during the course of the November 23, 2010 hearing (R 80-81, 86-87, 89-90, 102). Respondent raised this issue on appeal, asserting that Supreme Court's denial of his request for a continuance amounted to an abuse of discretion. However , the Appellate Division did not reach this question, finding that the issue was rendered moot by the expiration of Supreme Court's order of November 23, 2010 (R 5-6). POINT ONE SUPREME COURT WAS NOT AUTHORIZED TO ORDER THE FORCE FEEDING OF RESPONDENT BECAUSE HE HAS CAPACITY TO MAKE HIS OWN MEDICAL TREATMENT DECISIONS AND BECAUSE THE STATE DID NOT DEMONSTRATE AT TRIAL THAT ITS INTERESTS ARE SUPERIOR TO RESPONDENT'S PRIVACY INTEREST Under New York law, "a competent adult has the right to determine the course of his or her own medical treatment, and may decline even lifesaving measures, in the absence of a superior State interest" (Fosmire v Nicoleau, 75 NY2d at 221). In this case, since respondent unquestionably has capacity to make his own medical treatment decisions and because State did not demonstrate that its interests are superior to respondent's privacy interest at trial, Supreme Court was without legal authority to order the force feeding of respondent. 10 A . Because respondent has capacity to make his own treatment decisions, the State's parens patriae power is not implicated in this case. In Rivers v Katz (67 NY2d 485 [1986]), the Court, discussed the State's ability to administer psychotropic medications to involuntarily committed psychiatric patients in State custody. The Court found that patients have a right to refuse treatment with psychotropic medications, however "the right to reject treatment with antipsychotic medication is not absolute and under certain circumstances may have to yield to compelling State interests" {id. at 495). The Court found that the State is authorized to administer psychotropic medications to involuntarily admitted psychiatric patients in its custody only when its police power or parens patriae powers are implicated {id. at 497). With respect to the State's ability to administer psychotropic medications through the exercise of its parens patriae power, the Court found that the sine qua non for the State's use of this power is a determination that the patient lacks the capacity to make this medical treatment decision for himself {Rivers v Katz, 67 NY2d at 496). On this issue the Court held: in situations where the State's police power is not implicated, and the patient refuses to consent to the administration of antipsychotic drugs, there must be a judicial determination of whether the patient has the capacity to make a reasoned decision with respect to proposed treatment before the drugs may be administered pursuant to the State's parens patriae power" {id. at 497). 11 In the proceeding below, the State confirmed the fact that respondent has capacity to make his own treatment decisions. In its petition, the State asserted "[u]pon information and belief, [respondent] is competent and able to care for himself and his property" (R 21, 8). In addition, in his sworn affirmation that accompanied the State's petition, Karandy, indicated that "[respondent] is competent and able to care for himself (R 24, 5). Further, during the course of his direct testimony in this matter, Karandy reiterated that respondent is competent to make decisions for himself and able to care for himself (R 63). The medical evaluation that was included as Exhibit "A" to the petition in this matter indicates that respondent's "intent to continue his self-imposed starvation in order to gain a court appearance is so strong that he is not realizing the amount of self-harm he is committing. Therefore his reasoned decision making capacity is poor" (R 31-32). However, the evaluation otherwise indicates: "The patient clearly understands the risks and benefits of the proposed treatment along with the risks, benefits and alternatives. This patient displays rational thought processes and his capacity to make decisions is not impaired. The patient's current behavior in starving himself is deliberate with a clearly established goal. The patient is not impaired in his decision making process by mental or physical illness" (R 31). Therefore, since there is no question that respondent has the capacity to make a 12 reasoned decision with respect to the issue of his force feeding, the State's parens patriae interest is not implicated in this case. B . While the State's police power may be implicated in this case, the State failed to prove at trial that its interests are superior to respondent's privacy interest. In Rivers v Katz, 67 NY2d 485, the Court found that the State may administer antipsychotic medications to a patient over his or her objection in the exercise of its police power, "[wjhere the patient presents a danger to himself or other members of society or engages in dangerous or potentially destructive conduct within the institution" {id. at 496). The Court recognized that the State could only exercise its police power in emergency situations, where there is an imminent danger to the patient or others in the immediate vicinity, and that the State's police power would justify the temporary administration of medications over the patient's objection "only as long as the emergency persists" {id.). The Court also recognized that "[i]n all cases, however, in order to override the patient's right to control his care and treatment, the State's interest must be compelling" {id.). 1 . Respondent's privacy interest: In Fosmire v Nicoleau, 75 NY2d 218 , the Court addressed the State's ability to administer medical treatment to a competent adult against her will. Specifically, 13 that case involved the right of a competent adult to refuse blood transfusions which in the opinion of her treating physician, were necessary to sustain her life (id. at 223). Ultimately, the Court of Appeals found that Ms. Nicoleau had a common law and statutory right to decline blood transfusions and that the hospital did not demonstrate a superior State interest which would permit it to treat Ms. Nicoleau over her objection (id. at 226).6 The Court found in favor of Ms. Nicoleau despite the fact that u[t]he State has a well recognized interest in protecting and preserving the lives of its citizens" (id. at 227). The Court held: "In sum, the patient, as a competent adult, had a right to determine the course of her own treatment, which included the right to decline blood transfusions, and there is no showing that the State had a superior interest, in preventing her from exercising that right under the circumstances of this case" (id. at 231 - emphasis added). Thus, in some cases the State may have compelling interests that trump a competent person's privacy interest. However, since the State's interests are case specific the State must demonstrate at trial that its interests are superior to the individual's privacy interest. 6 The Court explained that New York's common law which established the right of a competent adult to determine the course of his or her own medical treatment was codified at Public Health Law §§ 2504 and 2805-d. 14 2 . The State's interests: While the State may have a compelling interest in preventing suicide, the record in this case does not support a finding that respondent was indeed suicidal. To the contrary, respondent engaged in a hunger strike so he could obtain a forum to address his complaints about abuse of respondent and other inmates in DOCCS custody, as well as certain "medical denials" that he was experiencing in prison (R 42-44). Specifically, it appears from the record that respondent suffers from sleep apnea, and that at the time of the hearing in this case he was not being provided with his "breathing machine" that he is supposed to use on a nightly basis (R 29, 97, 99). Ironically, rather than being suicidal, it appears that respondent engaged in his hunger strike to effect his a transfer to another correctional facility in an effort to preserve his life. During his direct testimony, respondent indicated that "[t]he hunger strike is trying to get some help. I got to get out of that prison before they kill me" (R 102). The fact that respondent was not engaging in the hunger strike because he was suicidal is further demonstrated by respondent's stated willingness to drink Ensure, a liquid nutritional supplement which Karandy testified would rectify respondent's health concerns that were caused by the hunger strike (R 77, 106-107, 110). However, Karandy testified that due to a DOCCS written policy, 15 Ensure could only be provided to inmates after the State successfully obtained a force feeding order (R 77-78, 87-88, 110). Furthermore, in his Psychiatric Assessment of respondent, dated November 17, 2010, which was attached to the State's petition to force feed respondent as Exhibit "B", Doctor Michael Slome specifically found: "[Respondent's] current psychiatric diagnosis is Anti-Social Personality Disorder. [Respondent] is not psychotic. He is not suicidal. He does not appear to need psychiatric medications. This writer believes that [respondent's] hunger strike is totally volitional in nature. [Respondent] is hoping that by undertaking a hunger strike, he will be afforded his day in court" (R 35 - emphasis added). In Fosmire v Nicoleau, the Court specifically noted that "[t]he State will intervene to prevent suicide or the self-inflicted injuries of the mentally deranged. But merely declining medical care, even essential treatment, is not considered a suicidal act or indication of incompetence" {id. at 227- internal citations omitted). A hunger strike by a mentally competent inmate in DOCCS custody may well present an emergency situation where the State would be authorized to treat the inmate over his objection pursuant to the State's police power. However, this should be done only when a court determines that an emergency exists and that the State has demonstrated that its interests outweigh the inmate's privacy interest. 16 While the Appellate Division determined that the State's "legitimate interest in maintaining rational and orderly procedures in its facilities is implicated where, as here, an inmate is attempting to manipulate the penal system" (R 8), there was simply no proof at trial regarding the effect that respondent's hunger strike was having on "rational and orderly procedures" at Great Meadow. Rather, since respondent was being treated at the prison infirmary during the entirety of his hunger strike and not in general population, it is unlikely that the other inmates were even aware of the fact that the hunger strike was taking place. Furthermore, there was no evidence that respondent's "hunger strike had caused disruption in the procedures in his unit, resentment among other patients, and had resulted in other patients adopting the starvation technique in order to gain attention" (Von Holden v Chapman, 87 AD2d 66, 67 [4th Dept 1982]). In short, while it is easy to assert that the State's interests in maintaining order, discipline, and other interests are implicated when an inmate engages in a hunger strike, proving that those interests are implicated and that they outweigh the inmates privacy interests is a different issue altogether. While the State's interests in preserving the health and safety were arguably implicated in respondent's case, respondent submits that the State did not prove that its interests in this area were superior to respondent's in light of the fact that 17 he was not actually suicidal, but merely interested in having his day in court. Furthermore, Supreme Court foreclosed respondent's attempt to develop the record on the issue of the effect of his hunger strike on his health, if any, by denying respondent's attorney's request for a continuance in order to review respondent's medical records and prepare a defense. In a similar case, the Supreme Court of Florida determined that when the state presented testimony solely on the effect that the prisoner's hunger strike was having on his health, the state 's interests in preserving the inmate's health and safety were not sufficient to overcome the prisoner's right to privacy (Singletary v Costello, 665 So2d 1099, 1109 [District Court of Appeal of Florida 1996] - "Thus, considering the breadth of Florida's privacy right, the state's interest in the preservation of life, in and of itself, cannot overcome Costello's fundamental right to forego life-sustaining medical intervention"). C . Von Holden v Chapman (87 AD2d 66 [4th Dept 1982]) is no longer controlling, and in any event, can be distinguished on its facts. Prior to respondent's case, the only New York State appellate level case which directly addressed the force feeding of inmates in DOCCS custody is Von Holden v Chapman. However, since that case predates Fosmire v Nicoleau (75 NY2d218 [1990])andi?/v v z(67 NY2d 485 [1986]), in which the Court 18 gave recognition to a competent individual's right to refuse unwanted medical treatment in the absence of a demonstrated superior State interest, it was no longer controlling authority at the time Supreme Court decided respondent's case. 7 Moreover, Von Holden can be distinguished on its facts. Both respondent's case and Von Holden involve competent hunger striking inmates. However, that is where the similarities end. In Von Holden, the Appellate Division found that the inmate was suicidal, but as previously discussed in this brief, respondent did not engage in his hunger strike due to suicidal ideation. Rather respondent had undertaken his hunger strike merely to obtain a forum to voice his complaints about the conditions of his confinement and to seek transfer to another facility in an effort to preserve his life. In addition, in Von Holden, the Appellate Division indicated that at trial there was evidence that the inmate's "hunger strike had caused disruption in the procedures in his unit, resentment among other patients, and had resulted in other patients adopting the starvation technique in order to gain attention" {Von Holden 1 Supreme Court's findings in this case appear to mirror the findings required for a court to order treatment over objection that were outlined in Rivers v Katz with the exception that Supreme Court did not make any findings with respect to respondent's capacity to make decisions regarding his medical care. Thus, it appears that Supreme Court may have engaged in more of a parens patriae analysis in respondent's case, when it should have engaged in an analysis of whether the State's interests are superior to respondent's privacy interest {see and compare R 103-104, with Rivers v Katz, 67 NY2d at 497-498). 19 v Chapman, 87 AD2d at 67). There was no similar evidence in respondent's case. With the exception of Karandy's testimony that u[p]ersons jeopardizing his health in such a manner requires a lot of time and attention by the medical staff (R 72), as well as his acknowledgment that he would be at Great Meadow taking care of patients if he were not in court testifying in respondent's case (R 72-73), there was absolutely no evidence at trial that respondent's hunger strike had resulted in disruption of prison procedures, resentment by the other inmates, or other inmates taking up the starvation technique.8 In fact, Karandy testified that once respondent began losing weight as a result of his hunger strike, he was removed from the general prison population and placed in the prison's hospital - where respondent remained until his trial (R 58). That Von Holden v Chapman is not controlling and can be distinguished on its facts was recognized in a previous force feeding case involving DOCCS and respondent. On April 8, 2010, Supreme Court, Clinton County (Ryan, J.) denied the State's petition to force feed respondent because DOCCS did not demonstrate at trial that its interests were superior to respondent's privacy interest. Citing Fosmire v Nicoleau , Supreme Court held that under New York law a competent 8 Admittedly, Supreme Court prevented testimony on these issues by sustaining respondent's objection to the line of questioning (R 72). 20 person has the right to refuse unwanted medical treatment, even lifesaving measures, in the absence of a superior State interest (Adden 04). Supreme Court then indicated that "[s]ince the respondent is a competent adult, the only issue for the Court to determine is whether the petitioner has proven the existence of a superior State interest" (Adden 04 - emphasis added). Supreme Court distinguished Von Holden v Chapman by finding that respondent was not suicidal and that "there is no evidence his actions have affected the orderly operation of Clinton. In short, the respondent is hurting no lone but himself (Adden 05).9 Supreme Court ultimately held: "Under these circumstances the State's interests in the health of and obligation to take proper care of an inmate must yield to the inmate's right as a competent adult to make a decision affecting his own health, even a decision that would appear to endanger his health" (Adden 05, citing Fosmire v Nicoleau, 75 NY2d at 227).10 Supreme Court, Clinton County's analysis of respondent's case is the proper one. Thus, respondent urges the Court to apply the same analysis in this appeal. 9 In its summary of the facts of respondent's case, Supreme Court also indicated that there was testimony indicating that respondent's actions in not eating or drinking had not been "taken up' by other inmates (Adden 03). 10 As previously indicated, Supreme Court, Clinton County's Decision and Order of April 8,2010, is attached as the Addendum to this brief (Adden 01-05). 21 D . A review of inmate force feeding cases from other jurisdictions discloses persuasive authority. In its Memorandum and Order of January 12, 2012, the Appellate Division held as follows: "Where, as Supreme Court found here, an inmate's refusal to eat has placed that inmate at risk of serious injury and death, we hold - along with the majority of courts that have considered the issue - that the State' s interest in protecting the health and welfare of persons in its custody outweighs an individual inmate9 s right to make personal choices about what nourishment to accept (Memorandum and Order at 4 - citations omitted)." While it is respondent's position that his case is properly reviewed under existing New York State law (i.e. Fosmire v Nicoleau and Rivers v Katz), a review of inmate force feeding cases from other jurisdictions reveals support for respondent's argument. There is no disputing the fact that the majority of the appellate courts that have considered this issue have ruled in the government's favor. However many of these cases: 1) apply an improper standard of review (see Commissioner of Correction v Coleman, 303 Conn 800, 38 A3d 84 [Supreme Court of Connecticut 2012] - court applied deferential "reasonably related to legitimate penological interests"11 standard in affirming force feeding order); 2) do not involve a 11 Turner v&i (482 US 78, 89 [1987]). 22 thorough analysis of the inmate's privacy interests as opposed to the government's interests; 3) and/or do not require the State to prove that its interests are superior to those of the inmate, as is required by New York law (see Matter of Grand Jury Subpoena John Doe v United States, 150 F3d 170 [2d Cir 1998] - State's interests found superior to inmate's privacy interests, but no indication that State was required to prove that its interests were superior at trial; McNabb v Department of Corrections, 163 Wash 2d 393, 180 P3d 1257 [Supreme Court of Washington 2008] - same;12 People ex rel Illinois Department of Corrections v Fort, 352 111 App 3d 309, 815 NE2d 1246 [Appellate Court of Illinois, 4th District 2004] - same; People ex rel Illinois Department of Corrections v Millard, 335 111 App 3d 1066, 782 NE2d 966 [Appellate Court of Illinois, 4th District 2003] - same;13 State ex rel White v Narrick, 170W Va 195, 292 SE2d 54 [Supreme Court of Appeals of 12 In his dissent, Justice Sanders disagreed with the speculative nature of the majority's conclusions regarding the superiority of the state's interests and found that the state failed to demonstrate at trial that its interests were superior to the inmate's privacy interest (McNabb, 163 Wash2d at 419-425, 180 P3d at 1271-1274). 13 In his dissent, Justice Knecht took issue with the majority opinion because it did not require the state to demonstrate compelling interests at trial. Knecht indicated: "I agree an inmate's right to privacy must be balanced against the Department's interest in maintaining order, security, and discipline. What is missing in this record is any evidence that Millard's conduct has had, or will have, any effect on order, security, or discipline. There is no balancing to be done. Millard has carefully expressed his will. We need not like him or the reasons for his hunger strike, but if the government wants to ram a tub down his throat or cut a hole in his abdomen, it should be required to demonstrate a compelling reason for doing so" (Millard, 335 111 App 3d at 1074, 782 NE2d at 973 - emphasis in original). 23 West Virginia 1982] - same; In re Caulk, 125 NH 226, 480 A2d 93 [Supreme Court of New Hampshire 1984] - same.14 However, there are several cases from other jurisdictions in which courts balanced the state's interests against the inmate's privacy interest through an analysis of the proof at trial {see Hill v Department of Corrections, 992 A2d 933 [Commonwealth Court of Pennsylvania 2010] - court reversed force feeding order because the State did not present evidence at trial that inmate's life was in imminent danger in absence of forced feeding, however no indication that state submitted evidence at trial in effort to establish that its other interests were implicated;15 Laurie v Senecal, 666 A2d 806 [Supreme Court of Rhode Island 14 In his dissent Justice Douglas took issue with the majority's speculation that "Caulk's actions could cause a breakdown in prison discipline, would disable the prison's ability to enforce institutional order and would adversely affect the State's authority over inmates. This conclusion simply is not supported by either the record or the superior court's findings" {Caulk, 125 NH at 234, 480 A2d at 98). Douglas found that "the State has the burden of proving that its institutional concerns are compelling and outweigh Mr. Caulk's constitutionally protected rights" {id.) and concluded that "the institutional concerns asserted by the State and accepted by the majority are not borne out by the record and, thus, do not override the exercise of Mr. Caulk's constitutionally protected liberty right" (id. at 235, 480 A2d at 99). Finally Douglas took issue with the majority's holding that the State's interest in maintaining an effective criminal justice system can outweigh Caulk's liberty interest (id.). 15 In Hill, it is unknown what sort of proof, if any, the State presented to the court to establish that its interests outweighed the inmate's privacy interest. In a concurring opinion, however, Judge McCullough urged the Commonwealth to develop a policy on the forced feeding of hunger striking inmates that addresses the concerns expressed in the court's opinion. Specifically, McCullough suggested that the policy incorporate the following elements, among others: "(1) objective standards to determine when a prisoner is in imminent risk of irreversible harm to his or her body; (2) a requirement to develop a factual record in each case to explain how the prisoner's refusal to eat impacts on the orderly administration and security of the prison 24 1995] - court reversed denial of force feeding order finding that state proved a superior interest through testimony at trial; Schuetzle v Vogel, 537 NW2d 358 [Supreme Court of North Dakota 1995] - court affirmed issuance of force feeding order finding that state proved superior interest at trial; Singletary v Costello, 665 So2d 1099 [District Court of Appeal of Florida 1996] - court affirmed issuance of temporary injunction enjoining department of corrections from force feeding inmate because state failed to prove that compelling state interests outweighed the inmate's privacy right;16 and Zant v Prevatte, 248 Ga 832, 286 SE2d 715 [Supreme Court of Georgia 1982] - court affirmed denial of force feeding petition because the state did not show a compelling interest in preserving inmate's life that would override inmate's right to refuse medical treatment). Therefore, while the Court's analysis should be guided solely by existing New York law {see e.g. Fosmire v Nicoleau, 75 NY2d 218), there is ample authority from other jurisdictions holding that a state must to prove, through system; and (3) restrictions on the amount of time a prisoner may be restrained for the procedure" {Hill, 992 A2d at 942 - emphasis added). Thus, while joining in the majority's ruling on the legal issue presented in Hill, Judge McCullough recognized the importance of requiring the State to prove that its interests are superior to those of the hunger striking inmate before a court can direct the inmate's forced feeding. 16 The court also found that the State of Florida's demonstrated interest in preserving Costello's life could not overcome the fundamental nature of his privacy right to refuse unwanted medical intervention (see Singletary v Costello, 665 So2d at 1110). 25 evidence at trial, that the state's interests are compelling and that they outweigh the inmate's right to refuse unwanted medical treatment under the circumstances of that particular case. In respondent's case, the record simply does not support a finding that the State demonstrated that its interests outweigh respondent's privacy interest. POINT TWO SUPREME COURT DEPRIVED RESPONDENT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL WHEN IT DENIED RESPONDENT'S REQUEST FOR A CONTINUANCE A criminal defendant or civil respondent has a fundamental right to adequately prepared counsel. In People v McLaughlin (291 NY 480 [1944]), the Court discussed a defendant's right to counsel of his own choosing and the right to adequately prepared counsel. The Court held: "This fundamental right is denied to a defendant unless he gets reasonable time and a fair opportunity to secure counsel of his own choice and , with that counsel's assistance, to prepare for trial; no last-minute, peremptory assignment of counsel will serve, particularly when made at such a time and under such circumstances as practically to preclude the giving by counsel to prisoner and prisoner to counsel, of effective aid in the preparation of the case {id. at 291 at 482 - citations omitted). In People v Snyder (297 NY 81 [1947]), the Court of Appeals determined 26 that a trial court abused its discretion in denying a defendant's substitute counsel ' s request for an adjournment when the attorney had been appointed only six days prior to trial, two-and-a-half days of which were holidays, and where the trial was scheduled to take place only four days after the substitute counsel was able to speak to the retiring counsel. The Court held: "We think that the right of Kennedy to a fair trial was not properly protected. His right to protection by court and prosecuting authorities so that he might have the assistance of adequately prepared counsel for his defense was a fundamental one. We think that the denial of a request for an adjournment under the circumstances here presented was an abuse of discretion as a matter of law (id at 90 - citations omitted). Similarly, in People v McGuinness (9 NY2d 690 [1961]), the Court agreed with the dissenting opinion of the Appellate Division (see People v McGuinness, 11 AD2d 630, 630 [4th Dept I960]) and found: "the refusal of the trial judge to grant a short adjournment of the prosecution to permit the defendant to procure an attorney of his own choice was, in effect, a denial of defendant's right to counsel of his own selection, and that after the court had assigned counsel, the failure to grant the counsel's request for a reasonable adjournment to permit him to familiarize himself with and prepare for trial of the proceeding was tantamount to a destruction of the right, even though there had been a formal assignment" (id. at 691). In this case, the Order to Show Cause and verified Petition were filed on 27 November 22, 2010 at 4:07 p.m. (R 18), and the trial took place on the morning of November 23, 2010 at 9:30 a.m. (R 18, 39, 40). Assuming without conceding that the Washington County Public Defender's Office was served with court papers on November 22, 2010, respondent's attorney had mere hours, at most, to prepare for trial. In this one day hearing, respondent's attorney initially requested a continuance so that he and the State could look into the use of Ensure as an alternative means of providing nutrition to respondent short of tube feeding. In addition, respondent's counsel requested the continuance so he could analyze the "mountain of paperwork" that respondent had with him in the courtroom so he could present a "better and more adequate response" to Karandy's testimony (R 80-81). This first request for a continuance was not granted (R 51). Respondent's attorney again requested a continuance after asking the petitioner's witness a few questions about respondent's medical condition. Respondent's counsel indicated "[y]our honor, I'm going to request a continuance at this time. I cannot fully cross-examine this witness without my client 's full and complete medical file available and accessible to us for this matter" (R 86). With respect to the request for a continuance, Supreme Court merely indicated "I'll take that under advisement" then asked the State's attorney if he had any questions for redirect (R 86-87). Following redirect, recross and respondent's direct 28 examination, Supreme Court denied respondent 's attorney's request for a continuance acknowledging that "unfortunately Mr. Jones didn 't have the opportunity to review the medical records" (R 102). Supreme Court's denial of respondent's repeated requests for a continuance deprived respondent of his fundamental right to be assisted by adequately prepared counsel. Although Karandy testified that respondent's condition was "extremely poor " as a result of his hunger strike (R 61), Karandy only testified as to respondent's weight loss and muscle wasting as a result of his hunger strike (R 62). There was no testimony that respondent would expire, or otherwise experience irreversible damage to his health if the court were to adjourn the case for a few days. Surely, a brief continuance would have given respondent's counsel sufficient time to review the records in respondent's possession, subpoena and review respondent's medical records that were in the custody of DOCCS, consider obtaining the services of a medical expert and prepare an adequate defense. As it had in its order of November 23, 2010, Supreme Court could have issued a temporary order authorizing of the use of Ensure as a less restrictive alternative, thus maintaining the status quo while granting respondent's counsel time to prepare an adequate defense. Rather, Supreme Court denied respondent's request for a continuance, conducted the hearing with inadequately prepared 29 defense counsel and granted the State's application for an entire year. In doing so, the court deprived respondent of his due process right to a fair trial {see People v McLaughlin, 291 NY 480 [1944]). CONCLUSION For the foregoing reasons, the Court should reverse the Appellate Division's Memorandum and Order of January 12, 2012 on the law and vacate Supreme Court's Order of November 23 , 2010. Dated: Albany, New York August?, 2012 Respectfully submitted, Mental Hygiene Legal Service Third Judicial Department Sheila E. Shea, Director 40 Steuben Street, Suite 501 Albany, New York 12207 (518) 451-8710 By: jidm k/nf Shannon Stockwell, of Counsel 30 ADDENDUM ( 1 } At a term of the Supreme Court of the State of New York, held in and for the County of Clinton, at the Clinton County Government Center in the City of Plattsburgh, on the 2 nd day of April, 2010. PRESENT: HONORABLE KEVIN K. RYAN Acting Justice, Supreme Court STATE OF NEW YORK SUPREME COURT COUNTY OF CLINTON "The original of this copy of instrument was filed APR 1 5 2010 .» on Clinton County Clerk 's Office In the Matter of the Application of DALE A. ARTUS, Superintendent of Clinton Correctional Facility, Petitioner, for an Order Authorizing Feeding of LEROY DORSEY, No. 97-A-3442, Respondent. DECISION AND ORDER Index No. 10-04 92 RJI #09-1-2010-019-6 APPEARANCES: ROBERT C. GLENNON, Assistant Attorney General, for the Petitioner MARK V. COWEN, Esq., Attorney for the Respondent. RYAN, A.J. : Pending before the Court is the petitioner's order to show cause, signed April 1, 2010, seeking an order permitting the petitioner to administer food and hydration to the respondent as deemed necessary by the facility physician against the will of the respondent. In connection with this matter the Court has reviewed and considered the following: the order to show cause, dated April 1, 2010, the petition by Dale A. Artus, dated March 31, 2010, as well as attached Adden-01 exhibit A, the affirmation of Richard Adams, D.O., dated March 31, 2010, as well as attached exhibit A, the affirmation of the Assistant Attorney General, dated March 31, 2 010, the affidavit of Hazel Dwyer, sworn to March 31, 2 010, and the affidavit of Brian Lecuyer, sworn to March 31, 2010, the latter two documents indicating the respondent does not have any kind of medical directive or any individual appointed to make such decisions for him, and the respondent's answer, dated April 2, 2010, and affirmation in opposition, dated the same date, from respondent's counsel. The Court conducted a hearing on April 2, 2010, at which the petitioner, Dr. Adams and the respondent all testified. The relevant facts of this matter may be summarized as follows: the respondent is an inmate in the New York State Department of Correctional Services currently housed at Clinton Correctional Facility (Clinton). Except for some small amounts of nourishment, the respondent has refused to eat since March 6, 2010. Dr. Adams, the facility physician, testified that the respondent is currently in the infirmary and has lost weight since March 6th. The respondent has been brought to the local hospital twice for hydration. Dr. Adams has spoken to the respondent several times about the adverse effects of not eating which could be as serious as cardiopulmonary system or renal system failures 2 Adden-02 which may result in death. The respondent expressed to Dr. Adams that he was not eating because he wanted to make a statement to the court. There is no indication to Dr. Adams that the respondent is not competent. However, Dr. Adams cannot predict how long the respondent will be able to continue on his present course without adverse consequences, only that there will certainly be adverse consequences. Dr. Adams also testified that he has advised the respondent of the proposed procedures for administering nutrition: a nasal-gastric tube or a port placed right in the respondent's abdomen. The former can be done at Clinton, with the use of sedatives if necessary, but the latter would have to be performed at a hospital. Dr. Adams has also advised the respondent of the possible complications from the nasal- gastric intubation, such as aspiration, damage to the nasal passage, upper respiratory tract infection and the like. The petitioner testified the petitioner's actions in not eating or drinking have not been "taken up" by other inmates. The respondent testified extensively about his reasons for not eating. He does not wish to commit suicide, he expressed that not eating was a way to exercise his rights under the First Amendment. Essentially, the petitioner does not want to be housed at Clinton and is using his lack of eating as a method to force that issue. He believes the 3 Adden -OS prison employees, as well as other inmates, have taken his personal possessions as well as his legal mail. He expressed distrust towards the petitioner. The respondent was clear that if he gets his way and is transferred to another facility, he will start eating and drinking again. In New York State the law is settled that ua competent adult has the right to determine the course of his or her own medical treatment, and may decline even lifesaving measures, in the absence of a superior State interest'' ( Matter of Fosmire v Nicoleau, 75 NY2d 218, 221 [1990]). Since the respondent is a competent adult, the only issue for the Court to determine is whether the petitioner has proven the existence of a superior State interest. In the case of Matter of Von Holden v Chapman, 87 AD2d 66 [4th Dept. 1892], the inmate was also competent. However, unlike this case, that inmate expressed a desire to commit suicide, which the State has a clear interest in preventing, and there was evidence that the inmate's behavior in refusing to eat had caused "disruption in the procedures in his unit, resentment among other patients, and had resulted in other patients adopting the starvation technique in order to gain attention" (JJbid at 67) . The Appellate Division under those circumstances upheld the right of the prison to take all 4 Adden-04 necessary steps to force-feed the inmate because the State's interests in preserving life and "maintaining rational and orderly procedures in its institution" outweighed the rights of the inmate (Ibid at 66) . In contrast, the respondent here is not attempting to commit suicide and there is no evidence his actions have affected the orderly operation of Clinton. In short, the respondent is hurting no one but himself. Under these circumstances, the State's interest in the health of and obligation to take proper care of an inmate must yield to the inmate's right as a competent adult to make a decision affecting his own health, even a decision that would appear to endanger his health (see Matter of Fosmire v Nicoleau, 75 NY2d at 227) . This decision reflects the situation as exists at this time: should the situation change, the petitioner is free to file again. For the reasons stated herein, the petition is DENIED. IT IS SO ORDERED. ENTER: (jfr- KEVIN K. RYAN Acting Justice, Supreme Court Dated: Piattsburgh, New York April g , 2010 5 Adden-05