LI firm’s foreman guilty of lesser charge in cave-in death

The foreman of a Long Island excavation subcontractor was acquitted of manslaughter but convicted of criminally negligent homicide Friday in the buried-alive cave-in death last year of an immigrant laborer from Ecuador.

Wilmer Cueva, who was foreman for Sky Materials Corp. of Calverton at the Manhattan construction site where an unshored 14-foot trench collapsed on Carlos Moncayo, will face up to 4 years in prison at his December sentencing.

Manhattan District Attorney Cyrus Vance said the conviction, the second in four cases stemming from the death, would advance his office’s effort to use aggressive prosecutions to stem construction accidents and fatalities.

“When construction supervisors take shortcuts, they take chances with their workers’ lives,” he said in a statement. “. . . 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.”

“This tragic death was preventable had Cueva stood up for integrity and ensured workers were removed from the dangerous conditions,” said Mark Peters, the head of the city’s Department of Investigation, which also worked on the case.

Cueva, 51, of Elmwood Park, New Jersey, was charged with sending Moncayo, 22, and three other workers into the trench dug to construct underpinnings at a site being prepared for Restoration Hardware on the West Side. The others ran out as the collapse began.

Prosecutors said Cueva was repeatedly warned about the hazards of an unshored trench, and testimony indicated he told laborers to work fast because of the cave-in risk. The defense argued Cueva himself was an untrained worker with limited English and didn’t understand the risks.

The manslaughter charge that jurors rejected required proof that Cueva was aware of a serious risk and consciously disregarded it. Criminally negligent homicide, a lower-level felony, requires only proof that he should have appreciated the risk of death and did not. Cueva was also convicted on four counts of recklessly endangering the workers, a misdemeanor.

“The jury’s verdict is a clear rejection of the People’s vigorously pursued theory that Mr. Cueva appreciated and completely disregarded the risk of death to his fellow laborer Carlos Moncayo,” said Cueva lawyer Cesar De Castro.

Cueva’s sentencing is scheduled for Dec. 15.

Earlier this year, general contractor Harco Construction LLC of New York City was convicted of manslaughter in the case. A jury deadlocked in the trial of Harco site supervisor Alfonso Prestia, who is expected to be retried.

Charges are still pending against Sky. Sky and its owner, Michael Cholowsky, 52, of Manhasset, are charged with insurance fraud in a separate case for falsifying payroll records to save on workers comp premiums.

Cholowsky previously was a central government cooperating witness in the Brookhaven landfill corruption scandal in 1999, and pleaded guilty to conspiracy.