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Contractor in trench death balks at judge’s public service ads order

General contractor Harco Construction was found guilty of

General contractor Harco Construction was found guilty of manslaughter on June 10, 2016, in the April 2015 trench-collapse death at 9-19 Ninth Avenue in the Meatpacking District. Credit: New York District Attorney’s Office

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.


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