The construction site
Wilmer Cueva, 51 has been sentenced to1-to-3 years in state prison for endangering several workers at the construction site he managed and causing the death of 22-year-old worker Carlos Moncayo.
On November 4, 2016, the defendant was convicted by a New York State Supreme Court jury of Criminally Negligent Homicide and Reckless Endangerment.
“Wilmer Cueva knowingly and repeatedly risked his workers’ lives in service of an ambitious construction schedule,” said New York County District Attorney Cyrus R. Vance, Jr. “In the face of multiple warnings about the perilous conditions he created at 9-19 Ninth Avenue, Cueva personally directed—and then declined to stop—his illegal excavation work, and Carlos Moncayo, a young man working to support his family, perished needlessly as a result. 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.
“I encourage construction workers to report unsafe working conditions anonymously and directly to our Office using WhatsApp at 646-712-0298. The endangerment of workers is a crime, and this Office won’t let it stand,” Vance said.
DOI Commissioner Mark G. Peters added: “Safety should be the paramount goal for anyone on construction sites. Sadly, as the foreman on a Ninth Avenue job in 2015, this defendant failed his duty to safeguard the site, disregarding important warnings about the fortification of a trench, indifference that ultimately resulted in a worker’s death. Justice can never fully answer for such a grave consequence, but it can appropriately call individuals and companies to account for willful neglect, as it did in this case. DOI continues to work with the Manhattan District Attorney on these important construction safety investigations, exposing wrongdoing, rooting out fraud, and educating construction workers about safety through proactive initiatives.”
Cueva was employed by Sky Materials an excavation subcontractor, as an on-site foreman at 9-19 Ninth Avenue, where he was responsible for overseeing ongoing construction work and observing proper safety protocols at the active building site.
As required by the New York City Building Code and the Occupational Safety & Health Administration, excavations deeper than five feet must be fortified in order to protect workers and guard against collapse. Typically, fortification is achieved by sloping or shoring the walls of the trench. The trenches at the 9-19 Ninth Avenue, however, were not protected by any method of fortification, and in spite of repeated warnings, the unsecured trenches remained unaddressed by Cueva.
On April 6, 2016, at approximately 9:45 a.m., an inspector observed that a trench—which measured approximately seven feet in depth—was not secured, and alerted Cueva, who was on site supervising construction work. The defendant, however, did not address the safety inspector’s warning nor halt ongoing excavation work, and less than an hour later, the unsecured trench had reached a depth of approximately 13 feet.
The inspector later observed several workers inside the unprotected trench, issued another warning to Cueva and informed the defendant that the workers needed to get out of the trench immediately. The inspector also suggested an alternate method of completing the task that did not require workers to be inside the trench.
Cueva however, rejected the inspector’s proposal and allowed work to continue in the unprotected trench for nearly two more hours.
At approximately 11:50 a.m., after Cueva had received several warnings about these dangerous conditions, the trench collapsed, fatally crushing Moncayo.
