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NY court stops Sentosa nurses’ prosecution

NEW YORK – The US appellate court has stopped the Suffolk county district attorney’s prosecution of 10 Filipino nurses who resigned from a nursing home in New York because of violations of terms of their employment.
In its 13-page decision, the four-person appellate division of the Supreme Court of New York also stopped the district attorney from prosecuting the nurses’ lawyer, Felix Vinluan, for advising the nurses to resign.
The court said the charges “constitute an impermissible infringement upon the constitutional rights of these nurses and their attorney.” It said the charges violated the nurses’ 13th Amendment rights that protect them against “involuntary servitude” and Vinluan’s First Amendment rights.
The court stressed that the nurses’s shifts were covered when they quit their posts. The court gave weight to Vinluan’s right to advise his clients and stated that to “potentially inflict punishment for the good faith provision of legal advice is, in our view, more than a First Amendment violation. It is an assault on the adversarial system of justice.”
The nurses, who were recruited by SentosaCare, resigned from their jobs at the Avalon Gardens Rehabilitation and Health Care Center on April 2006 due to violation of their original contracts and intolerable working conditions.
In March 2007, the Suffolk District Attorney Thomas Spota obtained indictments against the nurses and Vinluan despite the fact that the State Education Department cleared the nurses of charges of placing the children’s welfare in jeopardy when they resigned en masse. Vinluan was also charged with criminal solicitation when he advised his clients’ of their rights to resign.
When contacted by Filam correspondent based in Illinois Joseph G. Lariosa, Spota had no comment on the adverse ruling of the court which was issued on January 13.
The nurses were charged with a 13-count indictment against the Filipino Nurses. They were accused of misdemeanor offenses of conspiracy in the sixth degree, endangering the welfare of child, and endangering the welfare of a physically disabled person.
The petitioners were Elmer Jacinto, Juliet Anilao, Harriet Avila, Mark De La Cruz, Claudine Gamiao, Jennifer Lampa, Rizza Maulion, James Millena, Ma. Theresa Ramos and Ranier Sichon. They were all recruited by the Sentosa Recruitment Agency, a Philippine-based company that hires nurses for several nursing facilities in New York controlled and managed by Sentosa Care, LLC.
Lariosa said Spota has 30 days to file an appeal on the unanimous four-member panel ruling before the Court of Appeals, New York’s court of last resort. Any ruling by the Court of Appeals will only be appeallable before the United States Supreme Court in Washington, D.C.
The case arose when the nurses arrived in the United States and they learned that they would be working for an employment agency instead of the specific nursing homes they had signed contracts with, which allegedly is lower paid and less stable form of employment.
Because of “substantial expenses,” including free travel and two months free house and medical coverage, in recruiting them, contract calls for their prospective employers a three-year commitment, and “liquidated damages in the amount of $25,000 should the nurses fail to honor their commitment.”
The nurses were assigned by the employment agency to the Avalon Gardens Rehabilitation and Health Care Center, a nursing home located in Smithtown, New York.
After their informal oral complaints about their working conditions, including improper compensations for overtime and night shifts, short staffing and last-minute shift changes, went unheeded, in February and March of 2006, the nurses sought the assistance of the Philippine Consulate, which referred them to petitioner, Felix Vinluan, an immigration lawyer.
The nurses told Vinluan they wanted to resign. Vinluan told them under the New York Education Law, they could not leave their position during a shift when they were on duty. He told them to remain on their job while “he pursued other remedies on their behalf.”
On April 7, 2006, the nurses, including 14 others, resigned from their employment either at the end of their shift or in advance of their next shift, using an identical form letter, which they had agreed upon together.
Sentosa filed a civil action against Vinluan and the nurses in the Nassau County Supreme Court, seeking damages, among others, for breach of contract and tortuous interference with contract.
On April 10, 2006, Avalon Gardens filed a complaint against the nurses before the New York State Education Department that the nurses abandoned their patients “by simultaneously resigning without adequate notice.” On Sept. 28, 2006, the Education Department dismissed the complaint, saying the “nurses had not committed professional misconduct because none of them had resigned in mid-shift, and no patients were deprived of nursing care since the facility was able to obtain appropriate coverage.”
In March 2007, a Suffolk County Grand Jury returned a 13-count indictment against the petitioners.
The first count charged Vinluan and the nurses with conspiracy in the sixth degree predicated upon their alleged intent to engage in conduct constituting the crimes of endangering the welfare of a child and a physically disabled person.
It also suggested that the conspiracy was a ploy to get out of the $25,000 financial penalty.
The nurses moved to dismiss the case on grounds that the prosecution violated their Thirteenth Amendment rights against involuntary servitude. But the Supreme Court of Suffolk County denied the motion, “concluding that there was ample evidence before the grand jury to support all of the counts against the petitioners.”
This prompted the petitioners to elevate the case before the Appellate Division, prohibiting Spota from prosecuting them, and to prohibit the respondent Robert W. Doyle, Justice of the Supreme Court, Suffolk County, from presiding over the matter, on grounds that the prosecution of the nurses violates their Thirteenth Amendment rights and Vinluan’s First Amendment rights.
In upholding the nurses’ petition, the Appellate Division ruled that the case “is not an exceptional case justifying a restriction of the petitioners’ Thirteenth Amendment rights. The nurses in this case were engaged in private employment rather than the performance of public service. Moreover, while they possessed the education and training necessary to care for chronically ill patients, including children on ventilators, these skills are not so unique or specialized that they cannot be readily performed by other qualified nurses.”
The panel added, “the prosecution impermissibly violates Vinluan’s constitutionally protected rights of expression and association in violation of the First and Fourteenth Amendments. It cannot be doubted that an attorney has a constitutional right to provide legal advice to his clients within the bounds of law.”

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