Tibor Varganyi Plea - Engineering News-Record

21PleaCOURT CLERK:Calling number two on the2345678910111213141516171819202122232425calendar Indictment Number 852 of 2010 the Peopleof the State of New York against Tibor Varganyi.The defendant, his counsel and theassistant district attorneys are present in thecourtroom.Counsel, please state your appearance forthe record.MS. HICKEY: For the People DeborahHickey.MR. CHERKASKY: Eli Cherkasky for thePeople.MR. BRIEF: Brief, Carmen & Kleiman, 805Third Avenue, New York, New York by Matthew J.Brief on behalf of Mr. Varganyi.MS. DAYTON: Elyse L. Dayton alsoappearing on behalf of Mr. Varganyi.THE COURT: All right. I just want toput quickly on the record what is happening hereand the reasons we are doing it.First of all, Mr. Brief, you requestedthat the courtroom be closed.Is that correct?MR. BRIEF: That's correct.THE COURT: Otherwise, I would not closeDDM

3Plea12345678the courtroom; but if the defense is requesting it,I will obviously go along with it, not that thereis anybody here.I had not understood actually when youtold me that there was a plea agreement that therewas going to be a cooperation agreement as well.That's between you and the districtattorney. I don't have anything to say about it.9Ithought this was going to be a plea with an10allocution and that was going to be that.11Isee now that there is a cooperation12131415agreement; but just to be clear this agreement isbeing disclosed to the co-defendant's counsel.Right?MR. BRIEF: That's correct.16Miss Hickey is aware of that.Virtually17181920immediately after the proceedings when I get backto my office I'm going to be calling Mr. Scheckmanand Mr. Langler with whom I have had the jointprivilege of working with until now.21Ido need to disclose it.22THE COURT:There was some question as to232425whether I would seal the record as I might do in acase where there is a cooperation agreement, butthe purpose of that would be under limitedDDM

4Plea1circumstances to keep it from the co-defendant,2which Iwould not ordinarily do but could do in3certain circumstances.4So, Iam not doing that.5678Obviously as I mentioned I will donothing to advertise this to anybody. I am alsonot doing anything to hide it.It's a plea taken in my courtroom as you9requested.You advanced the case to do that.1011whether IThe only issue with respect to that waswould take the plea or whether Justice1213Conviser would take the plea.When you first asked me if Iwould do14151617this, the case was in my part, and there was acourt date scheduled in Part 52; but when thedefendants indicated that they didn't need myintervention on the remaining issue that had to be1819decided, IConviser.had the case transferred to Judge20Now the case is currently pending in21front of Judge Conviser, but Iasked the22Supervising Judge, Judge Obus, whether Ishould232425take the plea or Judge Conviser should take theplea. Of course, I asked Judge Conviser what hispreference was as well.DDM

51PleaAll sides agree that Ishould do it since2Iam the person who has been with the case for the34567past years.Although Judge Conviser will be tryingthe case, he is going to need some time to get upto speed.It made more sense from a practical and8administrative point of view for me do that.I9said Iwould be willing to do that.10Irecognize that there was interest in1112this case from the media, from the family, from thecivil attorneys.13Idon't know how any of them will react14to this or not.It's really at this point I don't1516171819think something that should really enter into myconsideration.Obviously at sentence I'm required tohear from the victim's family and will, of course,if they want to be heard.20Iassume that is something the district212223attorney takes care of when they deal with thefamily in this case.In any event between me and Judge24Conviser it was decided that Iwould do the plea,25and that's why I'm doing it and for no otherDDM

6Plea1reason.2So, what Iunderstand is that there is an34agreement that's in effect, and Ipresented with a copy of it.have just been567It's been signed by Mr. Varganyi thedefendant, by Mr. Brief as his attorney and by MissHickey on behalf of the New York County District89Attorney's Office and it's dated today.along with the plea agreement.I will go1011121314Mr. Brief had asked me if the Peopleoffered a plea to criminally negligent homicide,which was a lesser charge in this case, andrecommended ultimately a non-incarceratory sentencewhether I would go along with that.15Isaid if it is the People's position1617181920that based on all the factors they need to considerthat this is an appropriate sentence, yes, I wouldimpose a non-jail sentence if that was theagreement of both parties following the completionof this agreement.21Ihad not understood that there was22232425cooperation involved, but if there is then thereis; and if the People recommend that then, yes, Iwill certainly impose a non-jail sentence.MR. BRIEF: Thank you, Your Honor.DDM

7Plea12345678910111213THE COURT: Okay. So, is there now anapplication then for Mr. Varganyi to withdraw hisplea of not guilty and to plead guilty in turn tocriminally negligent homicide?MR. BRIEF: I have discussed verysignificant issues involved in the defense of thiscase and the defense that Mr. Varganyi hasasserted.He after extensive consultation with bothmyself and his family in particular has asked me onhis behalf to withdraw his plea of not guilty andenter a plea of guilty in accordance with the pleaagreement.14THE COURT:This case has been pending in151617my part for close to two years. This is a 2008incident. That I know.A lot has been said about this case.I18know everybody's been apprised of my thoughts on19both the grand jury minutes, which Ifound to be20212223sufficient, and as we have always mentioned perhapsthe difficulties in proving certain aspects of thisbefore the trier of fact, not that it couldn't beproved but that this like many other cases before24me is atriable case.25There are obvious risks involved.DDMThe

8Plea123456789101112top charge is a Class D Felony -- C Felony.Excuse me.It's a C Felony Manslaughter in theSecond Degree, which carries, of course, a stateprison sentence of up to fifteen years.On the other hand, if the defendant isacquitted and the burden of proof is beyond areasonable doubt, there would be no jail and nofelony conviction.That has been discussed?Right?MR. BRIEF: Yes, Your Honor.13THE COURT:Mr. Varganyi, you have14discussed this with your lawyer Iassume.15THE DEFENDANT: We talked about it, yes.16THE COURT:You can have a seat.1718You understood what he's been saying?THE DEFENDANT: I understand.19THE COURT:You understand that at a2021222324trial the People have to prove your guilt beyond areasonable doubt?THE DEFENDANT: That I understand.THE COURT: All right. So, has anybodyforced you to plead guilty in any way?25THE DEFENDANT:DDMNo.

91PleaTHE COURT:Has anybody promised you2anything in exchange for your plea of guilty?3THE DEFENDANT:No.456THE COURT: Now, there is a cooperationagreement, a plea agreement here.THE DEFENDANT: I have the copy.78agreement?THE COURT:Have you read the entire9THE DEFENDANT: I read it through, yes.10THE COURT:Did you understand it in11full?12THE DEFENDANT: I understand.13THE COURT:Have you discussed the1415agreement with your lawyer?THE DEFENDANT: Yes, I did.16THE COURT:Do you have any questions?1718THE DEFENDANT: I did put a question andwe talked about it, yes.19THE COURT:They are all resolved now?20THE DEFENDANT:They are resolved.21THE COURT:Are you satisfied with the22services of your attorney?23THE DEFENDANT:Yes.24THE COURT:Do you understand that you do25not have to plead guilty, that you have a right toDDM

10Plea1a trial if you want a trial?2THE DEFENDANT:Yes, I understand.3THE COURT:At that trial it would be the456district attorney's burden as I mentioned to proveyour guilt beyond a reasonable doubt.Do you understand that?7THE DEFENDANT:I understand.89101112131415161718192021THE COURT: Okay. So, at a criminaltrial you have certain rights that you do not havE,that is you give up, when you plead guilty.It's important for me to know that youunderstand these rights, so I have to mention themfor the record.The first right would be the right to atrial by jury.I understand that as it presently standsit may be your lawyer's intention to give up or theco-defendant's intention to give up that right andtry the case before a judge; but if you wanted toyou have the right to have twelve jurors determinewhether you were guilty or not guilty, and their222324verdict would have to be unanimous.twelve would have to agree.Do you understand?That means all25THE DEFENDANT:DDMI understand.

111PleaTHE COURT:Also at a criminal trial23456everything happens in open court, so when thewitnesses testify your lawyers would have thechance to ask them questions to try to prove thatthey are not worthy of belief.That's called cross-examination or7confrontation of witnesses.You see them testify.89Your lawyer has a right to question them.Do you understand that?10THE DEFENDANT:Yes.11THE COURT:At a criminal trial you have1213the right to testify if you want.You can put on a defense.You can call14witnesses, and you can testify if you want to, but1516you don't have to.silent.You have the right to remain171819So, at a criminal trial they have toprove your guilt beyond a reasonable doubt.You can decide whether you testify or20don't testify.If you determine not to testify,2122232425then you have that right.You have the right to remain silent andnot testify, and the People still have to proveyour guilt beyond a reasonable doubt.Do you understand that?DDM

12Plea1THE DEFENDANT: Yes, I do, sir.2THE COURT:When you plead guilty you3admit your guilt, so in a few minutes I am going to45put you under oath.allocuted.You are actually going to be6Miss Hickey is going to read a set of78facts that Iattorney.think you agreed to with your9101112She is going to ask you whether you didwhat is claimed; and in order to take the plea, youhave to admit that you did what they say you die.Do you understand that?13THE DEFENDANT:Yes.14THE COURT:You give up the right to1516171819202122232425remain silent in that regard.You also give up every other right youhave at a trail.A conviction by plea of guilty is thesame as a conviction by verdict after trial in thatit goes on your record the same way.The sentence might be different dependingon certain factors because this is an agreed uponplea, but the fact of the conviction, the fact ofthe felony conviction, is the same.It still goes on your record as aDDM

13Plea123conviction for criminally negligent homicide as aClass E Violent Felony.Do you understand that?4THE DEFENDANT:Yes.5THE COURT:Let me just say this.6Iunderstand that you have consultedor78your lawyer has consulted with immigrationattorneys with respect to this plea because there9are circumstances under which a plea to afelony1011can result in serious immigration consequences forsomebody who is not a citizen.12Iknow what your citizenship status is.131415161718I don't require you to say it on the record. Inever do.Have you discussed the immigrationconsequences of this plea or the potentialconsequences with your attorney?THE DEFENDANT: Yes, I did.1920about that?THE COURT:You have consulted people21MR.BRIEF:If Ijust may for the record222324Mr. Varganyi called two separate and distinctimmigration attorneys David Glassman and AlexandraTsetlin.25Both agreed that aDDMguilty plea to

14Plea1criminally negligent homicide should not effect his23legal status as an alien.thirty years.He's been in America for45THE COURT:in Immigration Court.Strange things have happened6789101112131415You understand that if there areimmigration consequences that you did notanticipate I will not let you take back your plea?THE DEFENDANT: I understand.THE COURT: Okay. Is there a discussionabout his right to appeal in here?Is there any agreement?MS. HICKEY: There is a waiver.MR. BRIEF: Paragraph three, Your Honor.MS. HICKEY: Paragraph three.16THE COURT:There are certain rights of1718appeal that are non - waivable just so we all know.MS. HICKEY: Yes.19THE COURT:So, what this says is that2021222324you are giving up your right to the extent legallypermissible to appeal your conviction to any highercourt.Do you understand what that means?THE DEFENDANT: I understand.25THE COURT:DDMOrdinarily when you plead

15Plea1guilty your right to appeal your conviction23survives the plea.trial.You give up your right to456789However, as a condition of entering intothis agreement you give up your right to appealexcept for those matters that you are not permittedto waive.Have you discussed that with your lawyer?THE DEFENDANT: Yes, I did.10THE COURT:Usually the waiver sets forth1112those specific non-waivable issues, but I guess youdiscussed this.13Okay.Mr. Varganyi, please raise your14 right hand.15 (Whereupon the defendant was sworn.)16THE COURT:Miss Hickey is going to read1718the allocution, which Iis.think is what the agreement19202122232425MS. HICKEY: Mr. Varganyi, you willallocute under oath that you engaged in thefollowing criminal conduct and failed to perceivesubstantial and unjustifiable risk of death indoing so:That you were an employee of New YorkCrane and J.F. Lomma Incorporated whose dutiesDDM

16Plea1234567891011121314151617included the service and maintenance of JamesLomma's Kodiak Cranes.Kodiak was the manufacturer of aparticular make of tower crane that LommaIncorporated owned and rented to contractors foruse on construction sites many of which were in NewYork City.You also supervised others in the serviceand maintenance of those cranes.Beginning in May of 2007 it becameapparent that those cranes required the repair oftheir turntables by the replacement of a componentpart known as a bearing.Even though at least two companieslocated in the United States could provide thereplacement bearings that the cranes needed, one ofwhich was the original manufacturer of the original18bearings in the cranes, Mr.Lomma was dissatisfied19202122232425with the time it would take those companies todeliver the bearings.You understood that your supervisors didnot want to wait for the U.S. companies to replacethe bearings; and in late June or July of 2007 andwith Lomma's knowledge, permission and authorityyou located a bearing manufacturer called RTR thatDDM

17Plea123456789101112131415was located in the People's Republic of China.Lomma never asked you any questions aboutthis company and never required you to make anyinquiries regarding that company's reputation orthe quality of its work nor did Lomma require youto locate and speak to other customers of RTR or toindependently verify any of the claims on the RTRwebsite.You communicated via email with the salesmanager of that company and sent specifications anddrawings to the RTR sales manager to be used forthe manufacture of the bearing Lomma Incorporatedwished to purchase.At no time did you have an engineeringdegree or any training in the design or manufacture16of such equipment afact that Lomma knew.171819202122232425Lomma never asked you what you wereproviding to RTR for use in the design of thebearing nor did Lomma obtain assistance oroversight of a professional engineer or any otherperson competent to design as complex a piece ofequipment as a bearing.The specifications you sent to the salesmanager of RTR called for welding to be done by themanufacturer of the bearing.DDM

18Plea12345678910111213141516171819202122232425The sales manager of RTR wrote to you inan email warning you that the welding should bedone by New York Crane or a company other than RTR.You should not have accepted hersubsequent agreement to perform the welding.During the time that you were arrangingfor the manufacture and purchase of this bearingLomma never advised you about the requirements thatthe New York City Department of Buildings hadcommunicated to him before such a bearing would beallowed to be placed in a crane that was operatingon a construction site in New York City.In December of 2007 the bearing that youordered from RTR arrived after you had procured afinal drawing from RTR for the designed bearing atthe request of your supervisors for review.Neither you or as far as you know Lommaor anyone else who worked for Lomma arranged tohave the weld that was performed by RTR tested toinsure its quality.In April of 2008 this bearing was placedinto a Kodiak Crane that was being used on aconstruction site on the corner of 91st Street andFirst Avenue in New York County.Later in April of 2008 a second bearingDDM

191Pleathat you had ordered from RTR arrived.This second234567891011121314151617bearing contained a weld that was overtly flawed.You informed RTR about the condition ofthis weld, and RTR agreed to pay for its repair anarrangement about which Lomma knew.Despite the visible inadequancy of theweld on the second bearing RTR produced neither younor Lomma made any attempt to verify the adequacyof the weld on the first bearing, which remained inthe turntable of the Kodiak Crane on theconstruction site on 91st Street.On May 30th, 2008, the manufacturer'sweld on the first bearing received from RTR brokeapart, and the upper portion of the crane fell tothe ground killing two men Donald Leo and RammadanKurtash (phon).Are those facts true?18THE DEFENDANT:It's true.1920guilty plea.THE COURT: Okay. So, let's enter the21COURT CLERK:Tibor Varganyi, do you now22232425withdraw your previously entered plea of not guiltyand do you now plead guilty to the crime ofcriminally negligent homicide to cover and satisfyIndictment 852 of 2010?DDM

20Plea1Is that your plea, sir?23THE DEFENDANT:I plead guilty.I'm guilty sir, yes.4THE COURT: Okay. So, what do you want5to do?67sentencing date?MR. BRIEF: Can we set a January8THE COURT:Sure.910January 18th.MS. HICKEY: That's fine.11THE COURT:How's the 25th?12MR. BRIEF: The 25th would be better.13THE COURT:January 25th.14151617MR. BRIEF: I have one quick questionabout probation.Does Mr. Varganyi have to make anappointment to see probation now?18THE COURT:Why don't we set a date.192021The problem is the probation report andthe sentence date has to be six weeks after theorder.22Wecan have him come in January 25th, and2324we can send him for a probation report after that.MR. BRIEF: All right.25THE COURT:DDMTuesday the 25th if that's

21101112Plea1 okay we will put it down for sentence, and then we2 will adjourn it.3 It won't be for sentence. It will be to4 order the probation report.5 MR. BRIEF: Thank you, Your Honor.6 MS. HICKEY: Thank you.7 -0-8 CERTIFIED TO BE A TRUE AND ACCURATE TRANSCRIPTION OFTHE MINUTES TAKEN BY ME.913141516171819202122232425DDM