In People v. Davis, (12/30/09), the Fourth Department held that reversal was not required where a sitting Supreme Court justice sat as foreperson of the grand jury that indicted the defendant because she was not a part of the superior court that impaneled the grand jury.
Defendant argued that a grand jury is impaneled by a superior court and constitutes a part of such court (CPL 190.05), and that as such, every supreme court justice is "a part of" every grand jury impaneled throughout the state (CPL 190.05) and thus, not qualified to serve as a grand juror. Denying defendant relief, the Fourth Department reasoned that "a superior court is defined as '[t]he supreme court' or '[a] county court,' rather than as a single entity comprised of individual justices or judges (CPL 10.10 )."
The court also rejected defendant's challenged to the constitutionality of Legislature's action repealing Judiciary Law 511(4) (which had disqualified judges from sitting on juries).
Although ultimately unsuccessful, a fine bit of creative appellate advocacy by long-time creative appellate advocate Esther Cohen Lee of Utica.