James F. Lomma, Under fire after a deadly crane collapse in May 2008, New York Cranes and Equipment Corporation owner  will face a negligent homicide trial in Manhattan criminal court on Nov. 7, but much has changed since he was indicted nearly two years ago.
In March 2010, the District Attorney’s office unsealed charges against Lomma, 64; his former employee, Tibor Varganyi, 63; and his firms J.F. Lomma Inc. and New York Crane for second-degree manslaughter, second-degree assault, criminally-negligent homicide and second-degree reckless endangerment.
Prosecutors blamed the defendants for the deaths of the operator, Donald C. Leo, and another construction worker, Ramadan Kurtaj, arguing that the defendants failed to correct a rotator gear that snapped, raining steel debris onto the streets of Manhattan’s Upper East Side.
Manhattan District Attorney Cyrus Vance, Jr. and Bernadette Panzella, a lawyer representing Leo’s estate, both said Lomma’s “greed” caused the collapse.
Since that time, the defendants pleaded not guilty and posted bail, while their attorneys almost certainly watched as two similar high-profile prosecutions unraveled.
In July 2010, Manhattan Supreme Court Justice Roger Hayes found crane rigger William Rapetti not guilty of a similar crane collapse in Midtown East, which killed seven people.
That crane was also owned by Lomma, though he was not prosecuted for that collapse.
Rapetti’s attorney Arthur Aidala hoped to minimize the effect of his client being paraded before the press in a so-called “perp walk” by waiving his client’s right to jury trial, believing that the judge would be less swayed by the emotional impact publicity than the jurors.
Then, this summer, negligent homicide prosecutions in the construction industry failed again before both a judge and jury in the Deutsche Bank trial, where three individuals and one now-defunct corporation were acquitted of the major charges of their indictment.
The men were Jeffrey Melofchik, 49, a former executive of project contractor Bovis Lend Lease; Salvatore DePaola, 56, foreman for site asbestos-cleanup subcontractor, The John Galt Corp.; and Mitchel Alvo, 58, the sub's project manager.
The now-defunct John Galt Corp. was slapped with a $5,000 fine for the lesser charge of reckless endangerment.
Edward Little, who was Melofchik’s attorney in that trial, told ENR in a phone interview that prosecuting construction industry leaders for criminally negligent homicide is a tough sell, regardless of whether a judge or a jury is hearing the case.
“I think that they figure that most negligence cases are civil cases, but the idea that somebody goes to prison really requires a higher degree of culpability,” Little said.
He explained that the difference between criminal and civil negligence could hang on “gross” disregard, which can be more difficult to prove in the construction industry than in other fields.
“Take an example, if you have a nightclub, and you fill it with people, and you have a pyrotechnic display,” Little says. “Well, that’s pretty bad behavior.”
He added that Judge Rena K. Uviller, who presided over the Deutsche Bank fire trial, convicted a landlord of negligent homicide years before she sat on his client’s case.
“Sleazy SROs, where a landlord will remove the fire extinguishers, block the doorways, put in illegal wiring – those people get convicted,” he said.
Throughout the Deutsche Bank trial, Little repeatedly told the jury that his client was a “scapegoat” for a “tragedy," and he said that Hollywood may have primed the jurors to find that defense compelling.
“You see it constantly in movies. The cops and prosecutors got to get somebody, and some poor, innocent person gets nailed. That always makes a good story,” he said. “Unfortunately, that happens in the real world.”
He added “scapegoat” defense also can help neutralize the impact of jurors seeing their clients put through indictment and prosecution.
Despite the presumption of innocence, Little says, “The starting point for most jurors is, ‘Gee, the prosecutors indicted these guys. He must be guilty.’ Most people come off the streets, and say, ‘Here’s another criminal.’”
Still, Little says that he – like most defense attorneys – always prefers a jury trial.
“You just need to convince one out of 12 people,” he explains, adding, “If you get a hung jury, the state can re-prosecute, but generally they run out of gas. And they don’t want to do it again.”
Of course, a sitting judge cannot reach a hung jury in a bench trial, he adds.
Attorneys for the defendants have not publicly announced how they will try the case, as a possible Nov. 7 trial date looms.