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Foreman of LI company gets jail in NYC excavation fatality

Wilmer Cueva received a 1- to 3-year jail

Wilmer Cueva received a 1- to 3-year jail sentence for his role in a 2015 cave-in of an unshored trench at a Manhattan construction site that killed Carlos Moncayo on April 6, 2015. Photo Credit: NYPD

The foreman for a Long Island excavation subcontractor received a 1- to 3-year jail sentence Thursday for his role in a 2015 cave-in of an unshored trench at a Manhattan construction site that killed an immigrant laborer.

Wilmer Cueva, 51, of Elmwood Park, New Jersey, a foreman for Sky Materials, was acquitted in November of manslaughter but convicted of criminally negligent homicide and reckless endangerment in the death of Carlos Moncayo, 22, an undocumented worker from Ecuador, during excavation at a Restoration Hardware site.

Sky, of Queens and Calverton, has not yet been tried. General contractor Harco Construction LLC was convicted and ordered to fund public service ads. After a jury deadlocked on charges against Harco site supervisor Alfonso Prestia, he got probation and community service for criminally negligent homicide in a November plea deal, prosecutors said.

Cueva lawyer Cesar deCastro argued at trial that his client was just a low-level laborer himself with minimal safety training. After Thursday’s sentencing by Judge Anthony Ferrara in Manhattan Supreme Court, deCastro complained his client was the lowest man on the totem pole but was getting the harshest punishment.

“The court has sent the all-too-frequent message that the low-level employee suffers the brunt of the system and those truly culpable do not,” deCastro said.

Manhattan District Attorney Cy Vance Jr., whose office did not send out a news release on Prestia’s plea deal, said in a release about Cueva that his sentence should deter unsafe practices and deaths like Moncayo’s.

“I hope that the justice obtained for his preventable death will galvanize other construction supervisors to prioritize their workers’ safety ahead of expediency and profit,” Vance said.

Vance’s office declined to comment on why Cueva got a prison term and Prestia was given probation for the same crime. But at Prestia’s sentencing, the prosecutor told the judge probation was justified because Moncayo’s family didn’t want to undergo another trial, the Vance’s office said.

Sky’s next court appearance in the Moncayo case is scheduled for January. Sky, and its owner Michael Cholowsky of Manhasset, also face separate charges of insurance fraud.

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