The Long Island excavation company foreman charged in the cave-in death of immigrant worker Carlos Moncayo last year was too untrained on risks and safety procedures to be held criminally responsible, his lawyer argued Wednesday in summations at his Manhattan manslaughter trial.
Cesar deCastro, the lawyer for foreman Wilmer Cueva, told jurors that Cueva’s employer, excavation subcontractor Sky Materials Corp. of Calverton and Queens, and the general contractor were responsible for the collapse of an unshored 14-foot trench that killed Moncayo.
“Sky Materials sent their untrained workers into a dangerous job site without the basic knowledge necessary to safely perform the work,” said deCastro, who also questioned the authenticity of a federal Occupational Safety and Health Administration training card issued in Cueva’s name.
Moncayo, 22, an undocumented Ecuadorian, died April 6, 2015, on a West Side site being readied for Restoration Hardware. General contractor Harco Construction LLC has already been convicted of manslaughter, and a jury deadlocked on charges against Harco site supervisor Alfonso Prestia. A retrial is expected.
Sky also is charged and has not yet been tried, but instead of blaming the company, prosecutor Diana Florence cited testimony that Cueva warned laborers to be careful when sending them into the deep trench as proof that he knew the risks and ignored them to quickly prepare for a concrete delivery.
“He told the workers to be careful and work quickly because the sides could fall . . . as if they could defy gravity by sheer will and speed,” she said.
Cueva, 51, of Elmwood Park, New Jersey, is charged with reckless endangerment and criminally negligent homicide in addition to manslaughter, which requires proof that he recklessly disregarded deadly risks.
DeCastro described Cueva as a “laborer with a title,” a Spanish-speaker without the English skills to fully grasp things he was told, who wasn’t trained enough to know the risks, while Florence has portrayed Cueva as a “knowledgeable” manager who ignored warnings from inspectors.
One dispute at trial focused on testimony from an OSHA manager that agency records indicated Cueva and a number of other Sky employees — including owner Michael Cholowsky — attended an OSHA safety course through a Staten Island trainer, and received OSHA cards certifying the training.
Cueva never testified, but deCastro challenged the authenticity of the training.
Among other glitches, he said, the records listed two addresses for the training company — one nonexistent, one a parking lot and cheesesteak shack on Staten Island — as well as misspelling Cueva’s name and providing a ZIP code for the “Sky Masters” training location that didn’t match the address.
“This is the type of evidence the prosecution wants you to rely on,” he told jurors.
But Florence insisted Cueva’s card had been validly issued, and described the issue as a red herring.
“The trench that Wilmer created violated plain common sense,” she said. “And this danger is not something you need to take an OSHA class to learn about.”
Lawyers for Sky and Cholowsky, 52, of Manhasset, did not respond to emails seeking comment. The jury began deliberations, and is expected to resume on Thursday.