PEOPLE v. FORMICA (2007)

Defendant moves for inspection of the grand jury minutes and dismissal of the indictment.   He is charged in a seven count indictment with Manslaughter in the Second Degree (Penal Law 125.15[1] ), Criminally Negligent Homicide (Penal Law 125.10), four counts of Reckless Endangerment in the First Degree (Penal Law 120.25) and Assault in the Third Degree (Penal Law 120.00 [2] ).   One count of Reckless Endangerment in the First Degree (Count 7) relates to March 4, 2003;  the remaining counts relate to December 15, 2003.   In Count 1, Manslaughter in the Second Degree, the People allege that defendant “recklessly caused the death of Lorenzo Pavia, by digging an unsafe trench and directing Lorenzo Pavia to work inside the trench, which collapsed, thereby causing his death”.   Count 2, Criminally Negligent Homicide charges that the same acts were done “by criminal negligence”.   Counts 3, 4 and 6 charge reckless endangerment of Lorenzo Pavia (Count 3), a co-worker John Paci (Count 4) and rescue workers and firefighters (Count 6).   Count 5 charges reckless assault on John Paci.   Count 7 charges reckless endangerment of an unnamed construction worker on March 4, 2003.

The focus of the grand jury presentation related to a construction accident on December 15, 2003 at Taylor Street and Paris Court in Richmond County.   The evidence before the grand jury indicated that a trench which had been dug for the installation of sewer pipes collapsed.   Lorenzo Pavia, a worker at the site, was buried under a mound of earth and asphyxiated.   John Paci, a co-worker inside the trench at the time of the collapse, was injured.

The evidence before the grand jury indicated that defendant Kenneth Formica was a partner in Formica Construction Corporation and was present at and supervising the site where the accident occurred.   Mr. Formica is a licensed contractor with approximately thirty years experience.   A trench had been dug by defendant using an excavator.   The trench was approximately 25 feet long, 6 to 7 feet wide and 11 to 15 feet deep.   The defendant directed his employees Lorenzo Pavia and John Paci to connect a sewer pipe at a point in the trench that was 12 to 15 feet below street level.   The trench collapsed killing Mr. Pavia and injuring Mr. Paci.

The evidence adduced before the grand jury indicated that since the trench was more than 5 feet deep, both federal (29 C.F.R.1926.650) and city (N.Y.CAC 27-1032) regulations required shoring or sloping.   The defendant testified before the grand jury that he was aware of the “five foot rule” regulations.   The walls of the trench were vertical and not shored.   The street was not closed to traffic which was driving by during work in the trench.   The excavator, which was working on the trench, was situated on the edge of the trench.   The excavator was not positioned on steel plates, thus increasing the likelihood of ground vibrations.   The soil from the trench was “pre disturbed” and was classified as “Type B” soil by the OSHA Laboratory in Salt Lake City, Utah.   Testimony before the grand jury from a number of witnesses described the soil from the trench as “wet” (Grand Jury Minutes, October 18, 2005, p. 25), “all muddy” (Grand Jury Minutes, October 18, 2005, p. 36), “very muddy” (Grand Jury Minutes, October 18, 2005, p. 8) and “really soft” (Grand Jury Minutes, October 18, 2005, p. 36).¹

The testimony before the grand jury further indicated that on March 4, 2003 at 1400 Clove Road, New York City Department of Transportation Highway inspectors observed a man working in a ten foot deep trench at a Formica worksite.   The trench was not shored or sloped.   Defendant Kenneth Formica was supervising the worksite.   An inspector ordered the worker out of the trench and informed defendant that the worker should not have been in the trench because it was unsafe.   The inspector ordered the defendant to put shoring in the trench.   The defendant complied and six days later when an inspector returned to the worksite, there was shoring in the trench.

 The evidence presented to a grand jury must be legally sufficient evidence which, if accepted as true, would establish every element of the crime charged and the defendant's commission of it.   CPL § 70.10(1).   The Court of Appeals held that the threshold is reached when the evidence presented to the grand jury is prima facie proof that the crime charged had been committed by the defendant.  People v. Haney, 30 N.Y.2d 328, 335, 333 N.Y.S.2d 403, 284 N.E.2d 564 (1972).   The test is whether the proven facts and inferences that flow logically from them, viewed in the light most favorable to the People, if unexplained and uncontradicted, would be sufficient to warrant conviction by a trial jury.  People v. Swamp, 84 N.Y.2d 725, 622 N.Y.S.2d 472, 646 N.E.2d 774 (1995);  People v. Jennings, 69 N.Y.2d 103, 512 N.Y.S.2d 652, 504 N.E.2d 1079 (1986);  People v. Pelchat, 62 N.Y.2d 97, 476 N.Y.S.2d 79, 464 N.E.2d 447 (1984).   The People need not establish defendant's guilt beyond a reasonable doubt, but only the inference that he committed the crimes with which he is charged.  People v. Deegan, 69 N.Y.2d 976, 516 N.Y.S.2d 651, 509 N.E.2d 345 (1987).   In evaluating legal sufficiency, the court may neither resolve factual questions that are within the province of a petit jury (People v. Dunleavy, 41 A.D.2d 717, 341 N.Y.S.2d 500 [1st Dept., 1973] ), nor substitute its own inferences for those the grand jury has drawn (People v. Dordal, 55 N.Y.2d 954, 449 N.Y.S.2d 179, 434 N.E.2d 248 [1982] ).

 The evidence adduced before the grand jury supports the elements of each crime charged as those crimes are defined in the Penal Law. According to the Penal Law, “A person is guilty of manslaughter in the second degree when:  (1) He recklessly causes the death of another person․”  Penal Law 125.15(1).  “A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists.”  Penal Law 15.05(3).  “A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.”  Penal Law 125.10.  “A person acts with criminal negligence with respect to a result or to a circumstance described by a statute when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists” Penal Law 15.05(4).   The mental state of the actor for both recklessness and criminal negligence situations requires that the risk must be of such nature and degree that disregarding the risk (“recklessly”) or the failure to perceive it (“criminal negligence”) “constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”  Penal Law 15.05(3) and (4).   Thus the risks for each mental state are equal.   The distinction between the mental states of reckless and criminally negligent conduct, in simplest terms, is that for reckless conduct the actor is aware of and consciously disregards the risk, while for criminally negligent conduct the actor fails to perceive the same degree of risk.   The totality of the evidence adduced in this lengthy and comprehensive grand jury presentation supports the alternative findings by the grand jury that defendant either was aware of and consciously disregarded the risk of trench collapse or that he failed to perceive the same risk.

The cases cited by defendant are distinguishable.   In People v. Warner-Lambert, 51 N.Y.2d 295, 434 N.Y.S.2d 159, 414 N.E.2d 660 (1980), the Court of Appeals held that although defendants were aware of “a broad, undifferentiated risk of an explosion” based on ambient magnesium stearate dust used in chewing gum manufacturing, defendants were not criminally liable where the “triggering cause” of the explosion was “neither foreseen nor foreseeable”.  People v. Warner-Lambert, at 298, 434 N.Y.S.2d 159, 414 N.E.2d 660.   In the instant case, the risk of trench collapse was neither “broad” nor “undifferentiated” but rather was clear and specific, based on the depth of the trench, the quality of the soil and the failure to slope or shore, despite clear safety regulations and a prior specific governmental safety admonition.   While the “triggering cause of the explosion” in Warner-Lambert “was neither foreseen nor foreseeable” (People v. Warner-Lambert, at 298, 434 N.Y.S.2d 159, 414 N.E.2d 660), the direct cause of death (trench collapse asphyxiation) was foreseeable and should have been foreseen.   In People v. Roth, 80 N.Y.2d 239, 590 N.Y.S.2d 30, 604 N.E.2d 92 (1992), an employee of defendants' petroleum transporting company was killed when petroleum vapors exploded as the deceased was cleaning a tank trailer.   The explosion occurred when the deceased employee placed an unprotected trouble light in the path of a high pressure washer during tank cleaning operations.   The Court of Appeals held that an explosion caused in this manner was not foreseeable.  People v. Roth, at 244, 590 N.Y.S.2d 30, 604 N.E.2d 92.   On the issue of foreseeability, it affirmed dismissal of the reckless manslaughter and criminally negligent homicide charges, while reinstating reckless endangerment charges which the Appellate Division had dismissed.   People v. Roth, at 245, 590 N.Y.S.2d 30, 604 N.E.2d 92.   In People v. Reagan, 94 N.Y.2d 804, 701 N.Y.S.2d 306, 723 N.E.2d 55 (1999), two workers drowned after a trench in which they were installing water and sewer lines collapsed and burst a water line.   When a pressurized water pipe was discovered prior to the accident, defendant immediately stopped work, consulted a city plumbing inspector and proceeded in the inspector's presence by hand digging and moving the trench away from the pipe.   The Court of Appeals held that the defendant, rather than disregarding a risk, took concrete steps to avert it.   The Court of Appeals held that the deaths of the workers by drowning was not foreseeable and affirmed the Appellate Division dismissal of the reckless manslaughter and reckless endangerment charges.²

Thus in each case cited by defendant (Warner-Lambert, Roth, Reagan ), the Court of Appeals found the critical issue of foreseeability to be absent.   In the instant case, the People met their burden of establishing foreseeability.

Defendant's motion to dismiss is denied with respect to the legal sufficiency of each count of the indictment.   Defendant's motion to dismiss based on the introduction of the OSHA interview with defendant is denied.   In the context of this grand jury presentation and the volume of legally admissible evidence presented, the integrity of the grand jury was not impaired.   Defendant's motion to dismiss in the furtherance of justice is denied.

This constitutes the decision, opinion and order of the court.

FOOTNOTES

1.   The defendant, contrary to other witnesses, testified that the soil was “very dry”;  “It was virgin ground, and it was very tight, compact soil”.  (Grand Jury Minutes, October 25, 2005, p. 11);  the ground was “not wet” (p. 16).

2.   The trial court upheld criminally negligent homicide charges.   The legal sufficiency of those charges was not appealed to either the Appellate Division or Court of Appeals.

LEONARD P. RIENZI, J.