NYC Construction Foreman Convicted in Worker Death

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By John Herzfeld

Nov. 4 — A New York City construction foreman has been convicted of homicide in the April 2015 death of a worker in a trench collapse at a Manhattan excavation site, prosecutors announced ( People v. Cueva, N.Y. Sup. Ct., No. 01971-2015, 11/4/16 ).

After a seven-day jury trial before Justice Anthony J. Ferrara of the state Supreme Court for New York County, Wilmer Cueva was found guilty Nov. 4 of criminally negligent homicide and reckless endangerment. But the jury found him not guilty of the top charge, manslaughter.

Cueva was the second defendant to be convicted on criminal charges in a case alleging that they had failed to address unsafe working conditions that led to the fatal collapse.

In June, Harco Construction LLC was convicted of manslaughter, criminal negligent homicide and reckless endangerment. That verdict’s been appealed. Prosecutors called it a rare and important instance of a company’s being held criminally responsible for a worker death at its site.

The case is a prominent marker of decisions by New York district attorneys in recent years to pursue criminal charges in workplace deaths, a course favored by safety advocates.

The defendants in the case were accused of failing to heed repeated warnings over several months—including the morning of the noon cave-in—from a safety consultant about conditions at the site where laborer Carlos Moncayo was crushed to death.

Charges Pending Against Others

Charges remain pending against two other defendants, excavation subcontractor Sky Materials Corp. and Harco site supervisor Alfonso Prestia. Cueva was a Sky foreman.

Cueva’s sentencing is scheduled for Dec. 15. The maximum sentence for criminally negligent homicide is 16 months to four years in prison, versus five years to 15 years if the defendant had been convicted of second-degree manslaughter for recklessly causing the death.

“When construction supervisors take shortcuts, they take chances with their workers’ lives,” Manhattan District Attorney Cyrus R. Vance Jr. said in a statement. The death was preventable and foreseeable, he said.

“Today’s verdict again places companies and managers on notice: those who knowingly permit unsafe construction practices will face criminal charges if a worker is injured or dies as a result,” he added.

Defense Maintains Innocence

In a statement e-mailed to Bloomberg BNA, Cueva’s defense attorney, solo practitioner Cesar de Castro of New York, said, “While we still maintain that Mr. Cueva is innocent of all the charges, we certainly respect the jury’s verdict.”

The verdict, de Castro said, was “a clear rejection” of the prosecution’s “vigorously pursued theory that Mr. Cueva appreciated and completely disregarded the risk of death to his fellow laborer Carlos Moncayo.”

Instead, the defense attorney said, “the jury found that Mr. Cueva should have perceived the risks and convicted him of a crime that is designated as the lowest level felony we have in New York.”

De Castro said he backed Vance’s warning that a company “should ensure that its laborers are appropriately trained to appreciate the hazards on complex New York construction sites.”

To contact the reporter on this story: John Herzfeld in New York at jherzfeld@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

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