Construction Firm Found Guilty in Queens Worker’s Death Defies Sentence
By DAVID W. CHENJULY 13, 2016
A general contracting company that was found guilty of manslaughter in the death last year of a construction worker vowed on Wednesday to defy a judge’s order that it pay for public service announcements on worker safety.
Ronald P. Fischetti, a lawyer for the company, Harco Construction, said such a campaign would be tantamount to admitting wrongdoing and estimated it could cost hundreds of thousands of dollars. “Harco was innocent the day we walked into this courtroom,” Mr. Fischetti told Justice A. Kirke Bartley Jr. of State Supreme Court in Manhattan, “and they remain innocent today, notwithstanding your Honor’s verdict.”
“We will not obey,” Mr. Fischetti added. “We intend to appeal, and we believe the verdict in this case will be reversed.”
The company’s refusal to comply was an unexpected twist in a closely watched case related to the death of Carlos Moncayo, 22, an Ecuadorean immigrant who lived in Queens, at a site on Ninth Avenue in the meatpacking district of Manhattan, not far from the High Line.
Prosecutors with the Manhattan district attorney’s office argued that Harco had ignored repeated warnings about dangerous conditions at the site, and that the company’s negligence had contributed to the collapse on April 6, 2015, of a 14-foot trench in which Mr. Moncayo was crushed by thousands of pounds of dirt. Last month, Justice Bartley agreed with the prosecutors and found Harco guilty of second-degree manslaughter and criminally negligent homicide, both felonies, and reckless endangerment, a misdemeanor.
The excavation subcontractor, Sky Materials, as well as two managers — Alfonso Prestia, of Harco, and Wilmer Cueva, of Sky Materials — were also indicted after an investigation that involved the federal Occupational Safety and Health Administration, New York City’s Investigation Department and the Police Department. No trial date has been set in that case, but the felony charges being considered could result in jail time.
Construction accidents have been climbing in the city in recent years, and many of the victims are undocumented and sometimes poorly trained immigrants. A recent investigation by The New York Times into construction fatalities found that the rise in deaths and injuries has far exceeded the rate of new construction over a comparable period, and that in the cases in which workers died, supervision was lacking and basic steps had not been taken to prevent workers from falling. The investigation also found that because of the urgency to finish projects as quickly as possible, the workers were forced to take dangerous shortcuts or were inadequately trained.
So far this year, five construction workers have died. Twelve workers died last year, according to the city’s Buildings Department, up from eight in 2014. The death toll had not been that high since the previous construction boom, when 12 workers died in 2007 and 19 in 2008.
Yet criminal liability has often been hard to prove in construction accidents in New York. In 2012, the owner of a crane company, James F. Lomma, was acquitted of all criminal charges in connection with the collapse of a tower crane that killed two workers.
The Harco verdict, though, has been viewed as a potential milestone, because it could set a precedent for general contractors to be held criminally responsible, even if the workers on site are not official employees.
Under the law, Justice Bartley had limited options for punishment, including imposing a $10,000 fine. So he instead took the prosecutors’ recommendation that Harco pay for a televised worker-safety campaign, in English and in Spanish, saying that “the emphasis on trench safety could perhaps, perhaps save a life or lives.”
But Mr. Fischetti, Harco’s lawyer, called that “an illegal sentence” that “violates the First Amendment rights” of the construction company.
In response, the judge ordered that the parties return to court on Dec. 14. If Harco has not complied by then, he said, the court could impose the $10,000 fine.
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Contractor in trench death balks at judge’s public service ads order
Updated July 13, 2016 7:19 PM
By John Riley john.riley@newsday.com
HIGHLIGHTS
Harco of New York City says it is willing to pay $10G fine
Immigrant worker Carlos Moncayo was killed in April 2015
A Manhattan judge on Wednesday ordered a general contractor to fund public service ads on construction safety as part of its manslaughter sentence for the trench-collapse death of immigrant worker Carlos Moncayo, but the firm immediately pledged to defy the order.
Supreme Court Justice Kirke Bartley found Harco Construction guilty in June in the death of Moncayo, an Ecuadorean working for Long Island subcontractor Sky Materials. He said televised PSAs could do more good than a maximum $10,000 fine allowed for a company.
“The law is powerless to make the victim or his family whole,” the judge said. “Public service announcements, the emphasis on trench safety could perhaps, perhaps save a life or lives and if that were the case, possibly some good could emanate from this tragedy.”
But Harco lawyer Ron Fischetti, who argued at trial that Harco couldn’t be convicted based on a subcontractor’s failures, bluntly told Bartley his client would not comply with the “illegal sentence,” giving the judge no choice in the end but to impose the $10,000 fine.
“We will not obey it,” said Fischetti, who predicted that the verdict would be overturned on appeal and later complained to reporters that the PSAs would sound like an admission of guilt by Harco, a New York City company owned by Kenneth Hart.
Moncayo, 22, an undocumented worker, was buried alive in April 2015, when a 14-foot unshored trench at a Ninth Avenue construction site caved in. Prosecutors alleged that Harco, Sky, and their foremen recklessly ignored inspectors’ warnings.
Harco’s June conviction was lauded by Manhattan District Attorney Cyrus Vance Jr. and worker advocates as a rare if not unprecedented criminal verdict that would force general contractors to more closely oversee worksite safety. The sentencing, however, illustrated some of the limits on using criminal charges against corporations, which can’t be imprisoned.
Vance’s office originally said Harco faced $35,000 in fines for manslaughter, criminally negligent homicide and reckless endangerment, but acknowledged on Wednesday that under New York law the permissible fine was only $10,000.
As an alternative, prosecutors told Bartley he could spare Harco the fine on condition that it do the PSAs. But even Bartley conceded that if Harco defies him, he will only be able to impose the fine. He set a “compliance” hearing for December.
“Unfortunately, the penalties that corporations face are modest and not commensurate with the harm caused,” Vance said in a statement. “Stiffer penalties, such as ones specifically related to corporate conduct leading to death and serious physical injury, are needed.”
Worker advocates also expressed disappointment.
“It is unacceptable that companies can today stand in court and hide behind their profits and say, ‘We’d rather pay a fine than do anything good for the community to prevent other fatalities,’ ” said Arturo Archila, a United Steelworkers District 4 representative who attended the sentencing.
“Neither option is even close to what is deserved when a reckless contractor so clearly put profits over people,” said Gary LaBarbera, president of the Building and Construction Trades Council of Greater New York.
Charges against Sky and the two foremen are pending. Harco’s license was suspended after Moncayo’s death and has been reinstated, but it now has no active jobs according to city building department records.