Wilmer Cueva, a 51-year old foreman of excavation contractor Sky Materials, was sentenced yesterday to 1-to-3 years in state prison after having been found guilty on November 4, 2016 by a New York State Supreme Court Judge of criminally negligent homicide and reckless endangerment in connection with the April 6, 2015 death of 22-year old Carlos Moncayo. On the day of the tragedy, evidence at trial showed Cueva ignored repeated warnings from on-site private inspectors pertaining to inadequate safety precautions that were endangering workers in an unprotected trench. The trench at the site reached a depth of 13 feet and wasn’t sloped, shored or otherwise protected as required by OSHA. Prosecutors alleged that Cueva allowed work to continue until the fatal collapse, more than two hours after being advised that the workers needed to immediately get out of the unsafe trench. The New York County’s District Attorney’s office stated that trenches on the site weren’t secured for a three-month period back to February 2015 when Sky Materials and general contractor Harco Construction LLC were first warned.
In June, Harco was convicted of second-degree manslaughter, criminally negligent homicide and reckless endangerment for its role in Moncayo’s death. The cases against Sky Materials and Harco’s supervisor (Alfonso Prestia) are still pending. OSHA has already fined both companies $280,000.
“In the face of multiple warnings about the perilous conditions he created at 9-19 Ninth Avenue, Cueva personally directed — and then declined to stop — his illegal excavation work, and Carlos Moncayo… perished needlessly as a result,” said New York District Attorney Cyrus Vance Jr. In a warning to the construction industry, Vance stated: “Those who knowingly permit unsafe construction practices will face criminal charges if a worker is injured or dies as a result.” Earlier this year, in response in part to this tragedy, the New York County District Attorney’s Office initiated the Construction Safety Community Project to train construction workers to recognize safety hazards and report them to law enforcement. Prosecutors have sent a clear message in 2016 that they have the resources and motivation to hold the construction industry accountable for unsafe practices.