When 46-year-old immigrant construction worker Jose Vega was killed on May 4, 2021, his death was another incident in the growing number of trench-related fatalities for the year.
But on Monday, Vega’s death made history when a Westchester County Grand Jury indicted his supervisor, Michael Conway, 59, who was overseeing the construction site when Vega died.
The indictment, which comes after a 3-year investigation, marks the first time Westchester County has ever held an employer criminally responsible for the death of a worker. Conway is being charged with criminally negligent homicide, a felony, and two counts of reckless endangerment in the second degree, misdemeanors.
“For the first time in Westchester County, we are seeking to hold a contractor accountable for the death of a worker at a construction site that allegedly lacked proper safety measures,” said Miriam E. Rocah, Westchester County district attorney, in a statement shared with Documented. “My office will seek justice for the family of Jose Vega and continue to ensure workers’ safety remains a priority across the county to prevent fatalities like this one.”
The DA alleges that, as the site supervisor, Conway knew the excavation violated OSHA regulations, which require a trench deeper than 5 feet to have protections that prevent the walls from caving in. When the trench surrounding Vega collapsed, he was buried beneath thousands of pounds of dirt. By the time emergency services arrived, Vega was pronounced dead at the scene.
According to the indictment, Conway, the director of project development for construction company Lecher Development LLC, was responsible for ordering Vega and another worker to dig the approximately 9-foot trench without having the proper shoring or cave-in protections in place at the residential construction site on Shore Acres Drive in the Village of Mamaroneck.
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“The addition of this criminal enforcement effort by the District Attorney sends an even stronger message that high-hazard industries, such as excavation, must follow safety standards,” said Richard Mendelson, the regional administrator for the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA), in a statement.
Vega’s death was far from a unique situation. In 2022, OSHA recorded 39 deaths caused by trench collapses. That same year accounted for the highest number of deaths by trench collapses in 18 years.
However, convicting an employer for criminal liability in a worker’s death is extremely rare. While last year Brooklyn DA Eric Gonzalez prosecuted a construction company operator for the 2018 death of Luis Sánchez Almonte, who was crushed to death on a Brooklyn construction site, since 1970, there have only been 115 criminal prosecutions under the Occupational Safety and Health Act.
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The rarity also stems from how difficult it is to prove an employer was criminally negligent versus simply negligent. A prosecutor must prove an employer committed a reckless disregard for safety reasons, rather than just being an accident. Additionally, OSHA has historically found ways for employers to avoid the threat of prosecution by downgrading serious fatality cases.
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Through her Economic Crimes Bureau, DA Rocah’s commitment to the case is indicative of her office’s policy of pursuing those who have victimized immigrant workers. Since taking office in 2021, Rocah has prosecuted those who have stolen millions in wages from workers or committed labor fraud.
The Village of Mamaroneck Police Department arrested Conway on Feb. 21 and he was arraigned on Feb. 23 before Supreme Court Judge James McCarty in Westchester County Court. Bail was set at $5,000 cash, $10,000 bond, and a $25,000 partially secured bond at 10%.
During the subsequent OSHA investigation after Vega’s death, the agency issued the site subcontractor, Mickels Landscape, Inc., six unsafe worksite violations. Five of the violations were listed as serious, and one was a repeat violation. The contractor was ultimately fined $40,000.
Conway’s next court date will take place on March 22. Lecher Development LLC did not respond to Documented’s request for comment.
