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CPR's Crimes Against Workers Database

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Case Name: Harco Construction/ Sky Materials

State: NY
County: New York
Prosecutors: Assistant District Attorney Diana Florence
Incident Date: 04/06/2015
Incident Type: Trench Collapse

Victim Information:

Victim Name: Carlos Moncayo
Age: 22
Injury Type: Fatality
Job Title: Info. unavailable
Employer: Sky Materials
Description: Carlos Moncayo died when an unsecured trench in which he was working collapsed and crushed him. Sky Materials Corp. and Harco Construction LLC managed and oversaw construction at the worksite and Cueva and Prestia were responsible for workers safety and observing basic safety precautions at the site. Domani Inspection Services, Inc., was hired to inspect the site and during a February 2015 inspection, found that the trenches were not secured. Despite meetings with defendants and repeated email warnings about the issues, no improvements were made over the next several months. On April 6, 2015, a different Domani inspector went out to the site and immediately noticed an unsecured trench approximately 7 feet deep. He rushed to alert Prestia who was inside a trailer out of sight of the trench. Cueva was on site supervising excavation work. The inspector warned both Prestia and Cueva that workers shouldn't be allowed in the trench with unfortified sides two times. Prestia did not ask workers to get out of the trench until 2 hours after the first warning, but most did not understand because he told them in English. The inspector approached a Sky employee about the conditions and the employee spoke to Cueva who told the crew in Spanish to stop working in the trench. Moments later, the trench collapsed and killed Moncayo.
OSHA Inspection Detail Link(s): OSHA Inspection Detail 1, OSHA Inspection Detail 2

Defendant Information:

Name: Harco Construction
Type: Entity
Title: General Contractor Entity
Penal Crimes Charged: Manslaughter in the Second Degree (N.Y. Pen. Code Sec. 125.15) (1 count); Criminally Negligent Homicide (N.Y. Pen. Code Sec. 125.10) (1 count); Reckless Endangerment in the Second Degree (N.Y. Pen. Code Sec. 120.20) (4 counts)
Other Crimes Charged: None
Plea Info: Info. unavailable
Conviction/Sentence: Convicted. DA proposed an injunctive remedy, that Harco pay for a public service announcement. Under the PSA order, if Harco complied, the case would be dismissed after 6 months. But Harco told the judge they had no intent on complying, and appealed the conviction. On appeal, the sentence was revised to the maximum allowed under NY Penal Code, a $10,000 fine.
Name: Sky Materials Corp.
Type: Entity
Title: Excavation Subcontractor Entity
Penal Crimes Charged: Manslaughter in the Second Degree (N.Y. Pen. Code Sec. 125.15) (1 count); Criminally Negligent Homicide (N.Y. Pen. Code Sec. 125.10) (1 count); Reckless Endangerment in the Second Degree (N.Y. Pen. Code Sec. 120.20) (4 counts)
Other Crimes Charged: None
Plea Info: Pleaded guilty to manslaughter
Conviction/Sentence: As part of plea, Sky Materials agreed to pay a $10,000 fine and a $100,000 OSHA penalty. Sky can continue doing business but the company must take several "remedial" steps to improve safety on construction sites, including: Naming an experienced construction safety professional to oversee safety on each site, who would have regular daily and weekly communication with Cholowsky or his VP. The company is hiring a former police detective as compliance officer to oversee safety practices and guard against fraud, and will have top officials attend safety classes conducted at the company, and implement an employee reward program for good safety practices, the plea agreement said. It's not clear if those steps are mandatory and enforceable parts of the plea deal.
Name: Wilmer Cueva
Type: Individual
Title: Foreman, Sky Materials Corp.
Penal Crimes Charged: Manslaughter in the Second Degree (N.Y. Pen. Code Sec. 125.15) (1 count); Criminally Negligent Homicide (N.Y. Pen. Code Sec. 125.10) (1 count); Reckless Endangerment in the Second Degree (N.Y. Pen. Code Sec. 120.20) (4 counts)
Other Crimes Charged: None
Plea Info: Info. unavailable
Conviction/Sentence: Convicted for criminally negligent homicide and reckless endangerment. Sentenced to 1-3 years in prison. His attorney asked for reconsideration of the prison sentence in light of Prestia's plea bargain. (Possible case citation: People v. Cueva, N.Y. Sup. Ct., No. 01971-2015).
Name: Alfonso Prestia
Type: Individual
Title: Senior Superintendent/ Site Supervisor, Harco Construction
Penal Crimes Charged: Manslaughter in the Second Degree (N.Y. Pen. Code Sec. 125.15) (1 count); Criminally Negligent Homicide (N.Y. Pen. Code Sec. 125.10) (1 count); Reckless Endangerment in the Second Degree (N.Y. Pen. Code Sec. 120.20) (4 counts)
Other Crimes Charged: None
Plea Info: Pleaded guilty to criminally negligent homicide
Conviction/Sentence: As part of plea, must do community service, but not sentenced to any time in prison.
Additional Information: Unavailable

Access Resources on Drive

Case Materials & Court Decisions: Yes
Media Clips & Govt Press: Yes
Advocacy Materials: Yes
Other Materials: No
Advocacy Contacts: Nadia Marin-Molina, NYCOSH, nadia@nycosh.org, (212) 227-6440 x.11

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