By Marco Poggio

Law360 (January 19, 2021, 2:45 PM EST ) New York Chief Judge Janet DiFiore expressed dismay that Gov. Andrew Cuomo's administration has yet to include judges among the categories of people who are next in line to receive the coronavirus vaccine.

In her weekly address Monday, DiFiore said she was "very pleased" that court officers had been given priority to get the shot and that many of them had already begun to receive it. But in the same breath, DiFiore said the exclusion of judges from the priority list imperils the smooth functioning of the courts.

"The chief administrative judge and I have repeatedly urged our state officials to immediately expand the vaccination guidelines," Judge DiFiore said. "Failure to include judges in the priority category runs counter to our ability and our efforts to maximize the provision of justice services, and to our central role in protecting public safety and upholding the rule of law."

Judge DiFiore said she's continuing her effort to persuade the New York State Department of Health to modify its guidelines to include all the judges across the state's 62 counties.

Cuomo announced last week that a new group of New Yorkers were eligible to get the vaccine. That group included first responders, correctional officers, teachers, public-facing grocery store employees, child care workers, transit workers, residents of long-term shelters, as well as people aged 65 and older. Judge DiFiore said she was "extremely disappointed" that judges had been left out of the category.

The governor's office did not return emails seeking comment Tuesday.

Despite the judges' activity — last week they heard more than 23,000 matters, settled or disposed of 6,632 cases, and issued over 1,800 written decisions on motions — the pandemic has caused an unprecedented backlog of cases, Judge DiFiore said.

"Even though our judges and staff are doing a remarkable job of moving their dockets forward during this challenging time, the pandemic continues to challenge our courts in many areas," Judge DiFiore said. "A case in point is the large increase in unindicted felony complaints now awaiting grand jury presentation in New York City."

The number of felony complaints queued to be heard before grand juries is around 16,000. During the same period last year, the complaints were about 8,000, a spokesperson for the courts said.

In an attempt to clear the backlog of felony dockets in the city, the court system is partnering with district attorneys in the five boroughs to identify cases that can be calendered for a possible disposition, rather than having to wait to be heard before a grand jury, Judge DiFiore said.

On Tuesday, Lucian Chalfen, a spokesman for the New York State Unified Court System, reiterated Judge DiFiore's call to vaccinate judges as quickly as possible.

"We believe that New York state judges should be eligible. This would apply to all judges and justices who do not qualify under the CDC expanded vaccination eligibility list to include persons age 65 and older, as well as persons with immunocompromised conditions," he said.

After the pandemic hit the state, judges have worked from home, leaving only court officers and employees in positions that required contact with the public. But for months already, many of those judges have returned to their chambers, hearing cases through video feeds. Some judges, including most of those presiding over New York City Housing Court and some New York Supreme Court judges in criminal parts, have returned to in-person hearings, Chalfen said.

It's unclear how many judges have been directly affected by the coronavirus pandemic.

Three state judges died of coronavirus complications between March and April, at a time when the state was reaching a peak of infections, most of them clustered in New York City.

Two of those judges, Johnny Lee Baynes, 64, and Noach Dear, 66, presided over civil cases in Brooklyn Supreme Court. Supreme Court Justice Steven Milligram, 66, had recently been elected to serve on the bench in Orange County.

The court system keeps an updated cumulative number of COVID-19 infections that includes judges, court employees and visitors. Since March, when the court system began collecting data, there have been 826 cases, Chalfen said.

A positive COVID-19 test result gets recorded only when a person who has received one voluntarily communicates it to court administrators, making a comprehensive count difficult.

Clarification: This story has been updated to make clear how the courts and district attorneys in New York City are working together to clear the current backlog of felony dockets.

--Editing by Orlando Lorenzo.

For a reprint of this article, please contact reprints@law360.com.