Cyrus Vance Jr. Takes on One Crooked Contractor at a Time
Terence Cullen Sept. 8, 2016, 9 a.m.
When Cyrus Vance Jr. came through the ranks of the Manhattan district attorney’s office in his early 30s, the city was rampant with crime. After all, this was the mid-1980s, when Manhattan averaged 600 murders a year.
It’s a very different city since he took office six-and-a-half years ago.
There were 39 homicides last year (still too many, Vance said), and crime has taken on a different cast. Among the high-profile cases Vance has been prosecuting are the case of the immigrant laborer killed in an accident at a construction site in the Meatpacking District, and the busboy and diner killed at an East Village sushi joint when the building exploded. He’s come down hard on construction safety and fraud cases. (He’s also tried to reduce the backlog of rape kits, close cold cases and keep the historically low crime levels down.)
“The cases we are bringing reflect some of the unfortunate after effects of radical expansion and growth,” Vance said last week in his office at 1 Hogan Place. “Some folks are not going to do everything they should or are going to hide things that they’re doing.”
The son of the late Cyrus Vance, the former secretary of state and former secretary of the Army, Vance holds an office built up by the legacy of the three men who held the position in the 70 years before he became district attorney. (The three being Thomas Dewey, Frank Hogan and Robert Morgenthau—a fourth, Richard Kuh warmed the seat for 10 months after Hogan’s stroke). Three years into his second term, Vance, a Democrat, has been leaving his own mark on the DA’s office: crime prevention. Vance started his career as a prosecutor focusing on career criminals—repeat offenders for offenses like robberies—which has led him to take a statistics-driven, proactive approach to preventing crime.
He’s now employing that offensive tactic with a construction safety task force—something born out of the East Village explosion in spring 2015 that killed two and leveled three tenement buildings. Having tapped veteran Assistant District Attorney Diana Florence to help lead the group, his office partnered with the New York City Department of Investigations and other city agencies for a citywide approach to protecting workers.
The group’s formation came not long after the April 2015 death of Carlos Moncayo, a 22-year-old undocumented immigrant from Guatemala. He was one of several workers in a 14-foot trench at 9-19 Ninth Avenue—a redeveloped Meatpacking District building that was the former home of Pastis and will become the flagship store for Restoration Hardware. A site inspector at the property found it to be structurally unsafe, according to prosecutors, and told the construction managers to pull its workers out. One of the foremen called for them to get out of the trench. What happened next rattled the city.
As the workers left the trench, its walls began to crumble. Moncayo wasn’t able to escape. The walls came tumbling on top of him, and he was trapped. The weight of the earth crushed him, and he suffocated. Prosecutors alleged in an August 2015 indictment that the two managers—Harco Construction and Sky Materials Corporation—failed to properly secure the structure of the trench.
“That’s an important case,” said Mark Peters, the commissioner of the DOI, which co-investigated the case with the DA’s office. “I think we’ll see more cases [like that] coming in the future.”
Harco, the construction manager for the project, was convicted in June and sentenced to take part in public service announcements on Moncayo’s death and the need for construction safety. Ron Fischetti, the lawyer for Harco, said at the July sentencing that the company would not take part in the outreach program. Fischetti, who did not return a request for comment for this story, told CO at the time that participating would admit the company’s guilt in the accident, something that Harco continues to believe. He added at the time that the company is appealing the conviction, putting the blame on Sky Materials Corporation—the subcontractor.
“We cannot do that,” Fischetti told CO in July, referring to the public service announcements. “It’s not that we will not do it; we cannot do it. We could just let this go and pay the $10,000 fine. But we’re not doing it because they didn’t do anything wrong.”
When asked what his reaction was to Harco’s rebuff on the sentencing, Vance said he didn’t want to speculate about what went into the company’s decision.
“It might not have been the one that I would have either hoped that they would select or what I would have done if I were the defense counsel,” he said. “But that’s what they did. At the end of the day, I think it’s a missed opportunity. That being said, they have their own legal strategy; they’re going to pursue it and they have that right.”
The second company charged in Moncayo’s death, Sky Materials Corporation, is slated to go on trial this week.
Safety in the workplace seems to be on everyone’s mind lately. There were 400 construction-related accidents that led to more than 450 injuries in New York City in 2015, The Wall Street Journal recently reported. That came as 92 million square feet was under development in the five boroughs, according to the paper, citing New York City Department of Buildings data.
Because the site was a nonunion job, the Building Trades and Construction Council of Greater New York also applauded Harco’s conviction. Gary LaBarbera, the president of the workers’ union, said that 14 of the 16 construction deaths in the city last year were not union workers.
The Harco conviction “sends a very strong message that irresponsible contractors are not going to get away with ‘business-as-usual,’ ” LaBarbera said. “I’m sure there will be more cases coming.”
He added, “We want to see all contractors abide by the law. We’re absolutely tired of seeing workers get exploited. His office is playing a role in helping us address those issues.”
Vance said he doesn’t want to get into the whole union versus nonunion debate. Instead, he’s tasked Florence and Hildalyn Colón-Hernandez, a community coordinator and native Spanish speaker, to reach out to nonunion workers to inform them of what their (limited) rights are.
Florence, a 21-year veteran of the DA’s office who has spent the last nine years working in construction fraud, said the task force has given presentations to almost 800 workers in the last year.
Working with Colón-Hernandez, she tells the workers—many undocumented and non-English speaking—that they should take note of wrongdoing on job sites. Florence said they tell workers to take photos of hazards at the property, keep information on construction supervisors and co-workers as well as be honest about an injury when going to the hospital. The group also tapped into the immigrant relations department at the DA’s office to create a safe space to meet with these workers, oftentimes at consulates. Photos of safety threats, she said, are especially important because they illustrate how risky a site can be.
“If you look at the photographs of right after the collapse versus before, the aftermath photos don’t look especially horrifying. They’re pretty benign, actually,” Florence said of such sites in general. “Those pre-accident or pre-manslaughter photos really tell the story. If people know that people are watching, they’re going to be less likely to take advantage.”
The district attorney has also worked with Louis Coletti, the president and chief executive officer of the Building Trades Employers’ Association of New York City, the group that represents construction managers. Coletti filed a memo of support for Harco’s guilty conviction and told CO that Vance and his staff had actively reached out to people in the industry to understand its needs. Florence, he said, regularly attends BTEA safety meetings with governmental agencies to understand the tightrope that is construction safety.
“Contractors with good safety records and protocols are conflicted with respect to safety fraud,” Coletti said in an email. “On the one hand, those who do not follow appropriate safety practices should be held accountable. [But] they are not sure about how criminalizing those that don’t, in an industry that has so many moving parts and so much risk that gets applied to all contractors, is going to work out and not hurt those that do follow the rules.”
Vance emphasized that he didn’t think of himself as a crusader against the building industry. Rather, he said, an “overwhelming percentage of construction companies are entirely on board with us in terms of shared goals. They want New York to grow. They want the buildings that they make to be first rate, for the projects to be safe and to be completed without accident or injury.”
The 62-year-old Vance began his legal career in the early 1980s in a trial bureau and then the career criminals division under Morgenthau. He was one of several notable people to come out of a prosecutorial office that served as the minor leagues for prominent legal eagles and politicians. Others who passed though the halls of 1 Hogan Place include Eliot Spitzer, who would go on to become attorney general and then governor; John F. Kennedy Jr., before he tried his hand at publishing; Sonia Sotomayor, who became the first Hispanic woman appointed to the United States Supreme Court; and Andrew Cuomo, the former secretary of United States Department of Housing and Urban Development and currently the governor of New York State.
Vance was by no means a commoner amongst these scions. His father, Cyrus Vance Sr., was the secretary of the Army for John F. Kennedy and Lyndon B. Johnson. In 1977, Vance’s father became President Jimmy Carter’s secretary of state. As a 24-year-old in 1978, Vance had a front-row seat at the Camp David Accords between Israel and Egypt. At a young age, the diplomat’s son was more interested in where he would play baseball than who was running for office—he recalled volunteering for Johnson as a kid, but “that was a parent-forced decision.” Vance said his parents kept the business of defense and diplomacy away from the kitchen table.
“My parents kept my father’s work life and our family life fairly separate,” said Vance, who was born in New York City and spent a decent part of his childhood in the Washington, D.C., area. “A conscious decision [on their part]. But the [truth] is, it was really interesting.”
So interesting that he eventually followed in his father’s footsteps and got a law degree. (Both Vances went to Yale University undergrad; the son went to Georgetown University for his law degree.) Vance’s six-year stint in the DA’s office ended in 1988, however, when he moved his family to Seattle and became a defense and civil attorney. His father died in 2002, and two years later, Vance returned to New York when his mother and sister both became ill.
Running for Manhattan DA was always on Vance’s mind. The only thing was he had no plans to unseat Morgenthau, who first took office in 1975. The legendary lawman’s 35-year tenure was one of the longest in the city’s history—inspiring the character Adam Schiff on Law & Order. Murders in Manhattan accounted for 11 percent of the entire city’s statistics in 2008, as the New York Daily News reported at the time with a year left in Morgenthau’s tenure. That share was a significant drop from 1975 when murders in Manhattan accounted for nearly 35 percent of the whole city.
Morgenthau, however, announced 2009 would be his last year as the borough’s prosecutor, opting not to seek re-election that fall. Vance was a private attorney by that point and decided to make a run for the DA’s office. He eked out a victory in a three-way Democratic primary and cruised through the general election. A series of missteps and blunders during his first term, such as the Dominique Strauss-Kahn case—the French head of the International Monetary Fund was accused of sexually assaulting a maid—which fell apart and was quickly dismissed, seemed to have been largely forgotten when he ran for re-election in 2013, easily winning the race.
Some of Morgenthau’s work as DA cleared the way for Vance to focus on other issues, like construction fraud, said Peters, the commissioner of the DOI.
“One of the things that a DA has to do is constantly be looking at the city and what are the prevalent issues,” said Peters, who worked for the New York State Attorney General before becoming DOI commissioner in 2014. “Twenty years ago, a DA mostly had to be thinking about violent crime. Happily, there’s been a massive decrease in violent crime. Now things like construction safety [and] corruption are real issues we have to deal with. Cy Vance has done a great job in changing the office’s priorities to meet the new needs of the city.”
To do that, Vance has woven his approach to construction fraud into his broader plan of preventing crime. If Dewey’s legacy as district attorney was rooting out corruption and Morgenthau’s was reducing the homicide rate, Vance’s would be his use of data to predict where crime will happen. His cornerstone to that has been the Crime Strategies Unit, a constantly updated system that tracks repeat offenders and data on where crime is happening.
That prevention approach started to seep further into the construction fraud investigations after the East Village blast in March 2015 that killed two people and sent another 20 to the hospital. Vance indicted the landlords and several contractors this February.
The investigation led by the DA and the DOI revealed an intricate plan by the owners and contractor to provide gas to 121 Second Avenue, although Consolidated Edison did not approve its main lines.
Prosecutors charged two owners, two plumbers and a contractor with setting up a hidden gas supply to the building—this was done to provide heat to the building to get tenants to move in faster.
A building inspector came to 121 Second Avenue on March 26, 2015, to check out the new gas lines, which prosecutors say were approved by a licensed plumber on a date when he wasn’t even in the country. One of the contractors charged—Dilber Kukic—is alleged to have shut off the secret gas and turned the actual line on for inspection.
But the building didn’t pass inspection again, and the supervisor left the property in the midafternoon. Kukic, according to the indictment, ran back down to the hidden gas source to turn it back on. Only he didn’t shut off the actual gas line, prosecutors said, which led to the Thursday afternoon explosion.
The deadly incident played a key role in forming Vance’s task force, which he said has now taken a broader, citywide approach to preventing another such explosion.
Because the case is ongoing, Vance declined to discuss the East Village explosion at length. “Clearly we believe there was criminal misconduct and effort to disguise the gas delivery system that was ultimately used and we believe resulted in the deaths,” he said.
(Attorneys in the East Village case either did not return requests for comment or could not be reached.)
What helps, Peters said, was that the DA’s office has collaborated with DOI in these cases. An ADA will often go out with an official from the city agency to investigate right away. Peters said that helps because it streamlines the process; DOI doesn’t have to build up a case, present it to the DA and have to explain it all.
“My goal is to play whatever part we can in having a vibrant, safe construction industry,” said Vance, “because that’s good for New York.”
Peters, the DOI commissioner, was more upfront. During the February press conference announcing the indictment, he took particular issue with Andrew Trombettas, the plumber who attached his name to the work. The plumber, he said, had violated the trustworthiness attached to the license he was given.
“That was another example of construction professionals skirting the law, putting people’s lives at risk,” Peters told CO. “The message that I think comes from that case, like Harco, is that we take this very seriously. If you break the rules and take risks and people get hurt, you’re gonna be prosecuted.”