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‘We Will Not Obey’ Sentence in Worker Death, Construction Co. Tells Judge

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CIVIC CENTER — The general contracting company found guilty in the death of a young construction worker refused to comply with a judge's sentence to pay for worker-safety public service announcements — saying the company would rather pay fines than admit wrongdoing.

"We will not obey," Harco Construction's attorney, Ron Fischetti told Judge A. Kirke Bartley during Wednesday's sentencing hearing, after the company was found guilty of manslaughter in June in the death of Carlos Moncayo, who was crushed to death in an unsafe excavation pit at 9-19 Ninth Ave. on April 6, 2015.

Fischetti added that funding the court-ordered PSAs would be "an admission that Harco was partially responsible for this accident, and they were not."

"They're the victims here," he said of the company, adding that the sentence is "a violation of their constitutional right to free speech."

He added that the sub-contractor, Sky Materials Corp — which is currently awaiting a separarate trial — was the one that should be on the hook. "They're the ones that caused the accident, not us."

Prosecutors had asked Bartley to sentence Harco to create a public service announcement campaign — in English and Spanish — to disseminate information about worker safety after the company was found guilty of manslaughter in June in the death of Carlos Moncayo, who was crushed to death in an unsafe excavation pit at 9-19 Ninth Ave. on April 6, 2015.

The sentence, which had the support of prosecutors and 22 groups including a coalition of union general contractors, required Harco to fund English and Spanish print and television ads for worker safety in exchange for a "conditional discharge."

Judge Bartley said Wednesday he hoped the ads would "perhaps save a life or lives, and if that were the case, possibly some good could come from this tragedy."

"The law is powerless to make the victim and his family whole," Bartley added, as Moncayo's family sat in the courtroom. "[We] can't bring him back to life. Can't give him back to his family. A young man went to work with hopes, aspirations, dreams for his new life in America. He died tragically and violently and so, so unnecessarily."

Bartley said that if Harco refused to pay for the ads they'd face a $10,000 fine — far short of the $35,000 maximum fine that prosecutors had also asked him to levy against the company.

"I would ask that the corporate defendant reconsider in the hopes that some good could come from this tragedy," Bartley said.

By law, the judge could only sentence Harco either to the $35,000 penalty or the PSAs, but not both.

Assistant District Attorney Diana Florence requested the judge find Harco in contempt of court, and the judge said he would look into it.

"I'm mindful of the fact that the defense has stated its position that it will not comply," Bartley said.

Fischetti claimed Florence wrote all 22 of the letters of support from the various groups and told Bartley she did it "not for your honor [but] for the press and the media."

"The idea that [the groups] wrote [the letters] is a farce," Fischetti said.

After court, Fischetti also alleged that the impact statement read by Moncayo's sister, in which she said she hoped the PSAs would help other families avoid "this pain that our family will go through for the rest of our lives," was written "by a PR department working for the [city's] Construction Fraud Task Force." That task force, involving DOI, the DA, the NYPD and other city agencies, is led by Florence and was formed after Moncayo's death.

The site, formerly the home of the restaurant Pastis, is being redeveloped into a Restoration Hardware flagship store by developers Aurora Capital Associates and William Gottlieb Real Estate. 

An investigation by the Manhattan District Attorney and the city's Department of Investigation uncovered emails and documentation showing that Harco, the general contractor responsible for the site, and Sky Materials, the subcontractor in charge of the excavation, ignored months of safety warnings from special inspectors, including several the morning of Moncayo's death.

Harco was convicted of two felonies — manslaughter in the second degree and criminally negligent homicide — and three misdemeanor counts of reckless endangerment, for Moncayo and two other workers who were in the trench with him shortly before he died. The maximum fine the company faced was $35,000 — $10,000 for each felony and $5,000 for each misdemeanor. That money would have gone to the state.

Any additional fines may be revealed at the next court date, which is Dec. 14.

Harco's attorneys plan to appeal Bartley's conviction, though they have not yet filed paperwork, they said. The company is also facing a separate civil suit brought by Moncayo's family.

When Moncayo died, Harco had immediately hazardous violations at seven other construction sites around the city, a DNAinfo New York investigation found.

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