Opinion
1278 CA 19–00093 INDEX NO. 52579.
03-13-2020
In the MATTER OF Matthew THOMS, Superintendent of Five Points Correctional Facility, Petitioner–Respondent, For an Order Authorizing the Feeding, Hydration, and Treatment of Shane H., Respondent–Appellant.
DANIELLE C. WILD, ROCHESTER, FOR RESPONDENT–APPELLANT. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (MARTIN A. HOTVET OF COUNSEL), FOR PETITIONER–RESPONDENT.
DANIELLE C. WILD, ROCHESTER, FOR RESPONDENT–APPELLANT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (MARTIN A. HOTVET OF COUNSEL), FOR PETITIONER–RESPONDENT.
PRESENT: SMITH, J.P., NEMOYER, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent, a prison inmate with a history of engaging in hunger strikes, appeals from an order that, inter alia, authorizes the Department of Corrections and Community Supervision to forcibly feed him should he refuse to eat. The order remains effective until respondent's release from custody. We affirm.
The preservation rule applies in a proceeding to authorize the forcible feeding of a hunger-striking prisoner (see Matter of Bezio v. Dorsey, 21 N.Y.3d 93, 98–100, 967 N.Y.S.2d 660, 989 N.E.2d 942 [2013] ). Here, despite having been given a copy of the proposed order before it was signed, respondent did not object to either the duration or scope of the order, and he never asked that it be amended to incorporate the substantive limitations that he now seeks on appeal. In fact, the record shows that respondent "consented to the procedure employed by [Supreme Court], fully participated in the proceedings ..., and did not raise [his] current objection[s] until [now]" ( THI of Ill. at Brentwood, LLC v. CAM–Brentwood, LLC, 98 A.D.3d 464, 464, 950 N.Y.S.2d 477 [1st Dept. 2012] ). Respondent's appellate contentions are thus unpreserved for our review (see People v. Konieczny, 2 N.Y.3d 569, 572, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004] ; Van Sharma, Inc. v. Chamberlain, 109 A.D.3d 1094, 1095, 972 N.Y.S.2d 132 [4th Dept. 2013] ).