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In re Dorvilier and Harry's Nursery Registry

United States District Court, E.D. New York

May 31, 2017

IN RE DORVILIER AND HARRY'S NURSERY REGISTRY

          MEMORANDUM DECISION AND ORDER

          Ann M. Donnelly Judge

         The petitioner, who is on probation, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254.[1]On May 10, 2012, following a jury trial, the petitioner was convicted of two counts of Grand Larceny in the Third Degree and eleven counts of Grand Larceny in the Fourth Degree. He challenged his convictions on direct appeal, and on November 5, 2014, the Appellate Division, Second Department affirmed his convictions. On April 12, 2016, he filed the instant habeas petition; he asserts that his trial and appellate lawyers were ineffective because they did not effectively challenge the sufficiency of the evidence against him. For the reasons that follow, the petition for a writ of habeas corpus is denied.

         FACTUAL BACKGROUND

         I. Overview:

         The petitioner, Harry Dorvilier, is the owner of Harry's Nurses Registry, Inc. ("Registry"), a company that provided nurses to patients in need of home care. (Trial Record ("Tr."), Affidavit of Johnnette Traill in Opposition to the Petition for a Writ of Habeas Corpus ("Traill Aff."), ECF 6, Ex. 2-7 at 131, 163, 192, 389-390, 487.)[2] At the time of trial, the Registry employed over 100 nurses and had been in business for over twenty years. (Tr. 139, 148.)

         The petitioner was charged with grand larceny based on allegations that between August of 2006 and November of 2007, he wrongfully withheld funds from the nurses by deducting one dollar an hour from their paychecks. (Tr. 29-65, 149, 167-168, 197, 274, 303, 333, 359-360, 379, 438, 451, 553.) The trial evidence established that he deducted over $25, 000 from at least thirteen nurses' paychecks, and used the money to pay the Registry's outstanding workers' compensation premium. (Tr. 512-521, 723-725.)

         Pursuant to New York's workers' compensation law, employers are required to maintain workers' compensation coverage for employees, and may not charge any portion of the coverage to their employees. (Tr. 491-493.) In contrast, companies are not required to pay workers' compensation coverage for independent contractors, and may deduct from their paychecks to cover the cost. (Id.) Thus, the jury's determination of whether the plaintiff was guilty of grand larceny turned on whether the nurses were employees or independent contractors. (Tr. 723-733.)

         II. Criminal Trial

         Queens County Supreme Court Judge Joel L. Blumenfeld presided over the petitioner's trial. (Tr. 101-744.) Sixteen nurses testified about working for the Registry and the deductions from their paychecks. (Id.) Three witnesses testified about the workers' compensation system: Steven Carbone, district manager for the Long Island division of the New York Workers' Compensation Board; Effie McCartney-Donaldson of the Office of Fraud Inspector General of Workers' Compensation; and Lauren Hill, an underwriter with New York State Insurance Fund. (Id.)

         A. The Distinction Between Employees and Independent Contractors

         a. The Nurses' Testimony

         The nurses testified that as part of the Registry's hiring process, they were required to pass a test of their medical knowledge and to present credentials, including proof of medical malpractice insurance coverage. (Tr. 131-132, 161-162, 191-192, 214-215, 269-270, 299-300, 353, 391, 459.) Once hired, the nurses were required to sign an agreement affirming that they were "independent contractor[]" and would be "responsible for all income taxes (Health Insurance, Mai-Practice Insurance, etc.) [sic] which may be due from the income derived pursuant to this contract." (Tr. 745; see also Id. 181, 210, 292, 746-753.) The agreement did not specify that nurses were required to secure their own workers' compensation insurance or that money would be deducted from their paychecks for that purpose. (Tr. 248-249.) Several nurses testified that they did not understand the meaning of the phrase "independent contractor" or the consequences of being classified an independent contractor versus an employee. (Tr. 181, 249, 462.)

         The business operated as follows: when an assignment became available, the Registry would contact a nurse who could then accept or reject the assignment. (Tr. 132-133, 162-163, 192-193.) The nurses worked under the supervision of a registered nurse employed by the Registry. (Tr. 133, 156, 178.) The Registry did not provide nurses with medical equipment, (Tr. 163-164, 178, 194, 205, 216, 237, 290, 327, 385), nor did it provide paid vacation (Tr. 150, 177-178, 208) paid sick days, (Tr. 178, 317, 369) health insurance, (Tr. 207) social security benefits, (Tr. 148, 177) or malpractice insurance. (Tr. 148, 177, 230, 342.) It did give nurses timesheets to track their hours, forms to log notes about patients, (Tr. 134, 164, 195, 217, 356) and badges that included their names and the company's name. (Tr. 561-562.) The Registry also offered in-service trainings on topics such as new equipment and technology, new medication and treatment techniques, and administrative matters. (Tr. 134-135, 225, 325-326, 399, 441, 561.) The petitioner signed the nurses' paychecks, which he issued on a biweekly basis. (Tr. 136-139, 193-194, 216-217.)

         b. Steve Carbone's Testimony

         Steve Carbone was the district manager for the Long Island district of the New York Workers' Compensation Board. He testified as an expert about the distinction between employees and independent contractors, as well as an employer's obligation to provide workers' compensation coverage.[3] (Tr. 472-508.) He explained that independent contractors work "without the direction and control of a business, " and are generally not in the same field "as the business that is hiring them to do so something." (Tr. 481-482.) Generally, independent contractors "can come and go as they please." (Tr. 482.) Carbone testified that New York defines employees more "liberal [ly]" than other states, and that "anyone providing services to an employer can be deemed to be an employee or anyone providing services to a business can be deemed an employee of that business." (Tr. 479-480.) Thus, an individual classified as an independent contractor by the IRS for tax purposes is not necessarily an independent contractor under New York workers' compensation law. (Tr. 482.)

         Carbone explained that the Registry would not be required to provide workers' compensation coverage if the nurses were independent contractors; they could be required to purchase their own policies, (Tr. 484), or they might contractually agree to have workers' compensation deducted from their paychecks. (Tr. 492.) If the nurses were employees, however, the Registry would be "solely responsible" for providing workers' compensation. (Tr. 484.)

         Finally, Carbone expressed his opinion that the nurses were employees. He considered the following factors in reaching that opinion: the written forms the nurses filled out before starting work, whether the nurses contracted directly with clients, the extent to which the Registry trained the nurses, the amount of direction and control the Registry had over the nurses, the extent to which the nurses had flexibility to "come and go" as they pleased, and whether the nurses were paid on an hourly basis. (Tr. 483-489).

         B. The Paycheck Deductions

         a. Lauren Hill's Testimony

         Lauren Hill, an underwriter at the New York Insurance Fund, testified about the Registry's workers' compensation policy. (Tr. 568-591.) She wrote the policy, which was active from February 7, 2006 to June 19, 2007, and she maintained the Registry's records. (Tr. 569, 579.)

         Hill testified that on August 2, 2006, she audited the petitioner's business and discovered that certain nurses who filled out 1099 IRS forms were not covered by the Registry's policy. (Tr. 580-581.) Accordingly, she adjusted the policy to include these nurses, which increased the petitioner's payroll amount and resulted in higher premiums. (Tr. 581-582.) The petitioner made regular payments towards the insurance of the policy from March of 2006 through May 2, 2007 for a total of $458, 333.60. (Tr. 586-588.) At the time of trial, there was an outstanding balance of $122, 729.01 on the account. (Tr. 588.)

         b. The Nurses' Testimony

         The nurses testified that between 2006 and 2007, the petitioner deducted an extra dollar per hour from their paychecks for workers' compensation insurance.[4] (Tr. 29-65, 149, 167-168, 197, 274, 303, 333, 359-360, 379, 438, 451, 553.) Almost all of the nurses testified that the petitioner did not ask their permission before making these deductions. (Tr. 197, 274, 333, 360, 379, 438, 455, 553.) A few, however, recalled receiving a letter notifying them of the deductions. (Tr. 417, 431, 553.) One nurse said that the letter gave her the option of accepting or declining to the deductions. (Tr. 553.)

         Another nurse testified that sometime in 2006, before the deductions began, a Registry supervisor and the petitioner met with the nurses. (Tr. 219-220.) According to her, several nurses complained about the deductions, but the petitioner stated that he was required to pay for workers' compensation insurance. (Tr. 148-149, 451.) Most of the nurses did not know whether or not they were covered by workers' compensation insurance, and stated that the petitioner did not show them copies of the policy. (Tr. 304, 323, 360, 379, 394, 419, 439, 451-452, 554.) Several nurses continued to work at the Registry after this meeting. (Tr. 149, 226-227, 297, 301, 331, 416.)

         c. Ellie Donaldson's Testimony

         Ellie Donaldson, a Special Assistant to the New York State Inspector General, testified that she supervised the investigation of the Registry and reviewed the petitioner's payroll records. (Tr. 510.) She found that the petitioner deducted a dollar per hour from the nurses' checks to pay for workers' ...


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