People v Harco Constr. LLC

People v Harco Constr. LLC 2018 NY Slip Op 04950 Decided on July 3, 2018 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 3, 2018
Sweeny, J.P., Webber, Kern, Oing, JJ.
7035 1972/15

[*1]The People of the State of New York, Respondent,

v

Harco Construction LLC, also known as H & H Builders, Inc., Defendant-Appellant.

Jeremy Gutman, New York, for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Ross D. Mazer of counsel), for respondent.

Judgment, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), rendered July 13, 2016, convicting defendant, after a nonjury trial, of manslaughter in the second degree, criminally negligent homicide, and reckless endangerment in the second degree (three counts), and sentencing it to a conditional discharge for an aggregate period of three years, unanimously modified, on the law, to the extent of vacating the criminally negligent homicide conviction and dismissing that count, and otherwise affirmed.

The verdict was supported by legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348 [2007]). The People established that defendant, the general contractor on a construction site, was liable based on the conduct of its "high managerial agent," who exercised managerial supervision over a subcontractor's employees (Penal Law § 20.20[1][b]), and "recklessly tolerated" conduct by the subcontractor constituting the offenses (Penal Law § 20.20[2][b]).

As the People concede, the criminally negligent homicide count should be dismissed as an inclusory concurrent count (see CPL 300.40[3][b]).

Defendant's contention that the reckless endangerment counts are multiplicitous is unpreserved, and we decline to review it in the interest of justice.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 3, 2018

CLERK