Construction company defies PSA safety video message sentence in worker’s death

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Instructor demonstrating correct method of allowing the web sling guide line to go slack once the trench box is in position

A general contractor found guilty of manslaughter in a construction worker’s death last year received an unusual sentence, but the lawyer for the contractor says the business has no intention of complying and instead will appeal the conviction.

Harco Constructions lawyer Ronald P. Fischetti said the company would not pay for pubic service announcements on worker safety, because this would be admitting guilt and could cost hundreds of thousands of dollars.

“Harco was innocent the day we walked into this courtroom,and they remain innocent today, notwithstanding your Honor’s verdict.” Fischetti said in court to  Justice A. Kirke Bartley Jr. of State Supreme Court in Manhattan.

“We will not obey,” Fischetti said. “We intend to appeal, and we believe the verdict in this case will be reversed.”

The company was convicted in a case related to the death of Ecuadorian immigrant Carlos Moncayo, 22, at a Ninth Av. site on Aril 6, 2015.

Prosecutors had argued that Harco had ignored repeated warnings about dangerous site conditions.  Moncayo died when he was crushed in a 14-foot trench by thousands of pounds of dirt.

The judge agreed with prosecutors and found Harco guilty of second-degree manslaughter and criminally negligent homicide, felonies, and a misdemeanor charge of reckless endangerment.

The excavation subcontractor, Sky Materials, as well as two managers — Alfonso Prestia, of Harco, and Wilmer Cueva, of Sky Materials  were also indicted after an investigation that involved the federal Occupational Safety and Health Administration, New York City’s Investigation Department and the Police Department, the New York Times reported. No trial date has been set in that case, but the felony charges being considered could result in jail time.

The newspaper said in its report that construction accidents have been climbing in the city in recent years, and many of the victims are undocumented and sometimes poorly trained immigrants. A recent investigation by The New York Times into construction fatalities found that the rise in deaths and injuries has far exceeded the rate of new construction over a comparable period, and that in the cases in which workers died, supervision was lacking and basic steps had not been taken to prevent workers from falling. The investigation also found that because of the urgency to finish projects as quickly as possible, the workers were forced to take dangerous shortcuts or were inadequately trained.

Justice Bartley had limited  punishment options, including imposing a $10,000 fine. Instead, he instead folowed the prosecutors’ recommendation that Harco pay for a televised worker-safety campaign, in English and in Spanish, saying that “the emphasis on trench safety could perhaps, perhaps save a life or lives.”

However, Harco’s lawyer Fischetti said this would be “an illegal sentence” that “violates the First Amendment rights.

The judge ordered the parties to return to court on Dec. 14. If Harco fails to comply by then, he could impose the $10,000 fine.

Image shows proper trench safety setup at a site unrelated to this story.

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