Opinion 22-141

October 27, 2022

Digest:         (1) A judge who has been properly noticed to serve on a grand jury panel must report for service unless excused by the presiding judge, notwithstanding that many assistant district attorneys appear before them. (2) If the judge serves as a grand juror, the judge may not thereafter preside in that case if it comes before the judge’s court.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)(ii); Opinions 06-169; 99-115; 88-155; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A part-time judge has been noticed to serve on a grand jury in another court. The judge asks if there is any ethical prohibition on serving because many assistant district attorneys who are presenting matters to the grand jury also appear as prosecutors in the judge’s court.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must “respect and comply with the law” (id.). In addition, a judge must disqualify in any “proceeding in which the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]) or in other specific circumstances as required by rule or by law (see generally id.; Judiciary Law § 14). Conversely, where a judge’s disqualification is not thus mandated, the judge is the sole arbiter of disqualification (see generally People v Moreno, 70 NY2d 403 [1987]).

         While we have not previously addressed how a judge should respond to a grand jury summons, we have advised that a judge “should comply with a valid subpoena issued by a competent tribunal” (Opinion 99-115). Indeed, as we advised in Opinion 88-155:

A judge as a witness is no different from any other witness and enjoys all of the rights, duties and obligations as set forth in CPLR Article 23. The judge must respond to the subpoena (CPLR section 2301) and is subject to sanctions for disobeying such a mandate (CPLR section 2300). If the judge feels that the subpoena should be quashed, modified or conditioned, CPLR 2304 provides the means for relief.

In our view, a judge summoned for grand jury service likewise “is no different from any other” individual so summoned (id.). Indeed, issues concerning the qualification, selection, empanelment and service of grand jurors appear to raise primarily legal questions (see e.g. CPL § 190; Judiciary Law § 16; 22 NYCRR 128). Accordingly, we conclude a judge who has been properly noticed to serve on a grand jury panel must report for service unless excused by the presiding judge, notwithstanding that many assistant district attorneys appear before the inquirer.

         Of course, if the judge serves as a grand juror, the judge may not thereafter preside in that case if it comes before the judge’s court (cf. 22 NYCRR 100.3[E][1][a][ii] [disqualification required if the judge “has personal knowledge of disputed evidentiary facts concerning the proceeding”]; Opinion 06-169 [under the circumstances, judge’s extra-judicial knowledge of possible criminality involving an agreement is disqualifying]).