DA Vance: Construction Company Foreman Convicted at Trial in Connection With Worker’s Death


November 4, 2016

Construction Workers Can Anonymously Report Unsafe Conditions to the District Attorney’s Office Using WhatsApp at 646-712-0298

Manhattan District Attorney Cyrus R. Vance, Jr., today announced the trial conviction of WILMER CUEVA, 51, the foreman of an excavation subcontractor, for ignoring warnings about unlawfully inadequate safety precautions at an active excavation site that he managed, which caused the death of 22-year-old worker Carlos Moncayo, and endangered several other construction workers. The defendant was convicted by a New York State Supreme Court jury of Criminally Negligent Homicide and Reckless Endangerment, and is expected to be sentenced on December 15, 2016.

“When construction supervisors take shortcuts, they take chances with their workers’ lives,” said District Attorney Vance. “As proven at trial, Wilmer Cueva ignored repeated warnings about the treacherous state of the excavations he was directing — resulting in the preventable and foreseeable death of Carlos Moncayo, a 22-year-old worker. 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. I thank the jury for its careful deliberation, and our partners at the Department of Investigation, Occupational Safety and Health Administration, and NYPD for their invaluable assistance with the investigation.”

DOI Commissioner Mark G. Peters said, “Today’s verdict continues to demonstrate to the construction industry and to supervisors on construction sites that putting lives at risk by cutting corners and compromising safety will have serious consequences. This tragic death was preventable, had Cueva stood up for integrity and ensured workers were removed from the dangerous conditions. I commend District Attorney Vance and his dedicated team on the successful prosecution of this important case.”

As proven at trial, CUEVA was employed as an on-site foreman by SKY MATERIALS (“SKY”), an excavation subcontractor hired to manage construction at 9-19 Ninth Avenue in the Meatpacking District. As required by the New York City Building Code and the Occupational Safety & Health Administration, excavations deeper than five feet must be secured—typically by sloping or shoring trench walls—in order to protect workers and prevent structural collapse. The trenches at 9-19 Ninth Avenue, however, were not secured by any method of fortification, and between February and April 2015, the unsecured trenches were not addressed in spite of repeated warnings about inadequate safety practices. 

On April 6, 2016, at approximately 9:45 a.m., an on-site inspector arrived at 9-19 Ninth Avenue, observed an unprotected trench measuring seven feet in depth, and alerted CUEVA, who was at the location supervising construction. The defendant, however, did not address the inspector’s safety concerns nor halt ongoing excavation work, and by approximately 10:35 a.m., the unsecured trench measured 13 feet in depth. The inspector also observed several workers inside the unsecured trench and informed CUEVA that the workers needed to get out of the trench immediately, and suggested an alternate method of completing the task that did not require workers to be inside the trench. CUEVA, however, refused the inspector’s proposal, and allowed work to continue in the unprotected trench for nearly two more hours. 

At approximately 11:50 a.m., by which point several warnings about inadequate safety measures had been given, the trench collapsed and fatally crushed one of the construction workers, 22-year-old Carlos Moncayo.  

Earlier this year, HARCO CONSTRUCTION LLC was convicted of Manslaughter in the Second Degree, Criminally Negligent Homicide, and Reckless Endangerment for the company’s role in failing to heed and address unsafe work conditions at the construction site, contributing to the collapse of the excavation pit and death of Carlos Moncayo. The conviction represented a rare and important instance in which a company was held criminally responsible for the death of a worker at its site. 

The cases against the other defendants indicted in connection with the incident, SKY MATERIALS CORP. and ALFONSO PRESTIA, are pending.

Manhattan District Attorney’s Construction Safety Community Project

District Attorney Vance established the Office’s Construction Safety Community Project in January 2016 in order to train construction workers proactively to recognize safety hazards and report them to law enforcement. Prosecutors and community coordinators from the District Attorney’s Office have given more than two dozen presentations in English and Spanish to more than 850 workers since the project’s inception.

Workers are additionally encouraged to report unsafe conditions anonymously and directly to the District Attorney’s Office using WhatsApp at 646-712-0298. Workers should include as much information as possible in their reports, including: photos or videos depicting the conditions; photos of work permits; the names of the contractor, subcontractor, and/or supervisors on the project; the project address; and the date and time of any incidents. 

Assistant District Attorney Diana Florence, Attorney-in-Charge of the Construction Fraud Task Force and Senior Investigative Counsel of the Rackets Bureau, handled the prosecution of the case with the assistance of Assistant District Attorney Carey Ng and under the supervision of Assistant District Attorney Judy Salwen, Principal Deputy Chief of the Rackets Bureau, Assistant District Attorney Jodie Kane, Chief of the Rackets Bureau, and Executive Assistant District Michael Sachs, Chief of the Investigation Division. Special Assistant District Attorney Kate Zdrojeski, Principal Community Coordinator for Immigrant Communities and Press Officer Hildalyn Colón Hernández, Investigative Analyst Conor Prior, and former Investigative Analyst Devon Rettew provided additional assistance with the case.
 
District Attorney Vance thanked the following agencies and individuals for their assistance with the investigation: DOI, and in particular, Deputy Commissioner and Chief of Investigations Michael Carroll, First Deputy Commissioner Lesley Brovner, Inspector General Gregory Cho, Chief Investigator James McElligott, Chief Investigator Barry Romm, Assistant Inspector General Tiffany Dumas, and Director of the Computer Forensics Unit Erskine Fleming; OSHA, and in particular, Assistant Area Director of the Manhattan Area Office Mitchel Konca; and NYPD, and in particular, the 6th Precinct Detective Squad, including Sergeant Kevin Blake and Detective Ryan Glas, and the Manhattan South Homicide Squad, including Detective John Flynn.

Defendant Information:

WILMER CUEVA, D.O.B. 6/22/1965
Elmwood Park, NJ

Convicted:

•    Criminally Negligent Homicide, a class E felony, 1 count
•    Reckless Endangerment in the Second Degree, a class A misdemeanor, 4 counts