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Construction Firm Doesn't Have to Comply With Sentence in Worker's Death

By Danielle Tcholakian | December 20, 2016 4:28pm | Updated on December 21, 2016 5:40pm
 Workers' rights advocates presented Carlos Moncayo's mother with a hardhat after the Harco conviction, vowing to keep fighting for justice in her son's name.
Workers' rights advocates presented Carlos Moncayo's mother with a hardhat after the Harco conviction, vowing to keep fighting for justice in her son's name.
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DNAinfo/Danielle Tcholakian

MEATPACKING DISTRICT — The construction company convicted in the death of a young worker refused to comply with a judge's sentence and now only has to pay a $10,000 fine.

Harco Construction was convicted earlier this year of felony manslaughter and felony criminally negligent homicide for the death of Carlos Moncayo, 22, at their construction site at 9-19 Ninth Ave., where neighborhood mainstay Pastis once stood.

The judge in Harco's case had sentenced the company in July to fund public service announcements in print and television promoting worker safety, but Harco's defense attorney said the company would not comply with the sentence.

READ MORE: 'We Will Not Obey' Sentence in Worker Death, Construction Co. Tells Judge

Funding the PSAs would be "an admission that Harco was partially responsible for this accident, and they were not," attorney Ron Fischetti had said at the July sentencing

Fischetti did not immediately respond to a request for comment Tuesday.

Judge A. Kirke Bartley said at the time that he would seek ways to force the corporation to comply before a December court date, but apparently found none. 

READ MORE: Construction Company Guilty of Manslaughter in Death of Worker

Moncayo was buried alive in an unshored excavation pit at the Meatpacking District site where developers William Gottlieb Real Estate and Aurora Capital Associates are building a new Restoration Hardware flagship store.

The young worker's death prompted the city to launch an investigation and bring criminal charges against Harco and subcontractor Sky Materials, as well as Harco foreman Alfonso Prestia and Sky foreman Wilmer Cueva. 

No charges were brought against the developers, who met with Deputy Mayor Alicia Glen a week after the Harco conviction. The meeting was regarding their project at that site, according to a City Hall spokeswoman.

In a short court appearance in court on Tuesday, Judge Bartley told Fischetti he never intended for the company to admit fault in the ads, only to put out a message to workers about how to be safe on the job. 

Bartley lamented that his options in penalizing Harco for contempt of court are limited under New York State law, which offers only two options for corporations convicted of felony charges: a conditional discharge, which is what Bartley chose when opting for the PSA sentence, or a fine with a maximum of $10,000.

According to prosecutors, while individuals who refuse to comply with sentences face legal consequences, no such repercussions exist in New York law for corporations.

Assistant District Attorney Diana Florence, who led the investigation into Moncayo's death and prosecuted all four parties charged, said in court on Tuesday that the $10,000 fine exposes holes in the legal system and is now motivating her office, under Manhattan District Attorney Cyrus Vance Jr., to push for legislative action to raise corporate penalties.

In a statement after the court appearance, Vance and Department of Investigation Commissioner Mark Peters said a maximum of $10,000 "does not meaningfully deter companies from this type of misconduct."

"For companies like Harco Construction, $10,000 is Monopoly money," Vance and Peters said in their joint statement. "When members of the State legislature reconvene next month, we urge them to raise the maximum penalty for corporate conduct leading to death or serious physical injury."

Vance and Peters previously noted the importance of Harco's conviction during the city's unprecedented development boom, and added Tuesday that "the safety of our workers and residents depends on" Albany legislators taking action.

Workers' rights advocates said after Tuesday's court appearance that the Harco trial had been "historic," but agreed with Vance and Peters that legislative change is imperative.

"We are proud of the momentum that is building to shift public perception about the responsibility bosses and supervisors have to keep workers safe," said Nadia Marin-Molina, associate director of the New York Committee for Occupational Health and Safety. "In a dangerous industry such as construction, the only way to transform the industry is to end the impunity of those who place profit over lives."

Two of the other related cases have ended. Cueva was sentenced last week to one to three years in prison, and Prestia got probation and community service in a plea deal in November after a deadlocked jury was unable to convict him.

The case against Sky is still pending.

Moncayo's family also released a statement after Tuesday's court appearance, joining Vance, Peters and the advocacy group in their calls for legislative change.

"Since our family arrived in this country, we thought the United States was a country of laws. We thought that the word of the judge is the law and that when a judge imposes a sentence this must be fulfilled or suffer the consequences," the family said. "Harco’s actions today shows that it is not the case... The law has to change to make sure that the company pays for their actions and protect workers and their families."