Legal Question in Criminal Law in New York
My former employer made several policy changes in January 2011 that made much of previously paid callout time now unpaid. It is important to note that this is a hospice organization and their wages are half what a nurse can get anywhere else. I started 9/15/08 and was told I could volunteer to work more on-call and callouts to increase my pay. I went on-call everyother week and all the other nurses called me to "run" most of their callouts. Understandably, I made 4-5x more on call/callout pay than the others every year. I left the organization at the end of January and I later sued them in small claims court for failure to pay all I was owed, threats from the HR rep to blackball me and other malicious acts. They counter sued me and contacted the local police and accused me of "overstating my hours" and therefore stealing $14,000 between 2008-2011. The detective never investigated the computer records or even questioned any of my coworkers. He completely took the word of management. They acknowledged applying policy and denied they made ANY changes (I have emails notifications of the changes all dated in January 2011). I can see from their submitted paperwork that they have applied all the new 2011 rules retroactively to chip away much of my previously paid time. Isn't that fraud? It isn't an overstatement of hours, it is how they made all my hours unpaid. Why would I have volunteered to work 50-60 hours a week without any compensation? I was arrested and I am awaiting trial. I cannot get employment anywhere and I am losing my home, my timeshares I paid on for years, my reputation and my credit. Is there any way I can get a real investigation before my kids and I are homeless? Why can't I just go to the state police or sheriff? Call me presumed guilty.
1 Answer from Attorneys
Your defense attorney needs to actively advocate on your behalf with the district attorney. In my experience most district attorneys (having been one) being presented with proof of actual innocence will re-investigate the case with both a review of their own evidence provided by the investigating officer and/or use their own internal investigators to either support their continued prosecution or why they should hold an alternate view of the complainants accusation. The fact that this complaint was made in retaliation for your having filed a civil suit is a big red flag for any prosecutor. The fact they waited until you civilly sued them to file a criminal complaint certainly raises questions. The very evidence you have to support that you are owed money from your former employer should also be used by your defense attorney to defeat the criminal case against you. Your attorney can subpoena the complainant's computer records as well as make a demand for exculpatory evidence from the prosecutor. According to the information developed by your attorney, If the prosecutor drops the case or you are found not guilty you also potentially have a civil action for malicious prosecution against your former employer as well as a criminal complaint for filing a false complaint and possibly evidence tampering according to the information developed. Although, the burden is on the state to prove your guilt, the facts and circumstance of your case require an active defense before entering the court room to demonstrate to the D.A.'s office why yours is a case that should never get to a trial. Often in cases such as yours, the best defense is a good offense. Good luck.
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