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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : CRIMINAL TERM : PART 52

2

3 THE PEOPLE OF THE STATE OF NEW YORK

4 Indictment

5 TIBOR VARGANYI, 852/1C

6 Defendant.

7

111 Centre Street New York, New York

9

10 October 5, 3011

11 BEFORE:

12 HONORABLE JUSTICE THOMAS FARBER

Ia. A 2 . .. A. .N..0 E.

14 CYRUS R. VANCE,. JR., ESQ. District Attorney

15 New York County BY: DEBORAH HICKEY, ESO.

16, ELI CHERKASKY, ESQ. -Fq; the People

17

18 BRIEF, CARMEN S KLEIMAN; KSQS. 805 Third Avenue

19 New York, New York BY: MATTHEW J. BRIEF, ISO.

20 ELYSE L. DAYION, ESQ. For the Oefenaent

nIANA DiuvILA-MONGg Sr. • Court RepOrtty:.

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1 COURT CLERK: Calling number two on the

2 calendar Indictment Number 852 of 2010 the People

3 of the State of New York against Tibor Varganyi.

4 The defendant, his cOunsel and the

5 assistant district attorneys are present in the

6 courtroom.

7 Counsel, please state 'your appearance for

8 the record;

MS. HICKEY: For the People Deborah

10 Hickey.

1 1 MR. GAEAKASKY: Eli Cherkasky for the

12 'People.

MR. BRIEF: Brief,. Ce4nte4:1,.

14 Third Avenue, New York, New York by Matthew J.

15 Brief on behalf of Mr. Varganyi.

16 MS. DAYTON: Elyse L. Dayton also

17 appearing on behalf Of Mr. Varganyi.

18 THE COURT: All right. I just want fo

19 put quickly on the record what is happening here

20 and the reasons we are doing it.

21 . First of all, Mr. Brief, you requested

22 that the courtroom be closed.

23 Is that:correct?

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MR. BRIEF: That's correct.

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THE COURT: Otherwise, / .would not close

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1 the couitroom; but if the defense is requesting Lt,

2 I will obviously go along with it, not that there

3 is anybody here.

4 I had not understood actually when you

yid me that there was a plea agreement that there

6 was going to .be a cooperation agreement as well.

That's between yqu and the district

attorney. 1 don't have anything to say about 13..

I thought this was :going to be.a plea with an

10 allocution and thar waS going to,be that. .

11 I See new that there is .a cooperation

12 a4reement; bilt.j.uSt to be clear this agreement is

.41 beine-efteel-o-sed.trthe ocr-defeSidan's-todnSier.

14 Right? ,

15 MR. RRIEF: That's'oorrect.

16, miss filckey is aware of that. Vlrtoally.

17 ithm-ediately Oftet rhe proceediiigs when TAehlsock

18 to. my'office. t'Pt going to be calLing Mr. Scheckman

19 :and Mr, tangier with whom r• have had the joint

20 privilege of. viorking With until now.

21 t do need to discleSe it.

22 THE 9ow6. there was sbme,questionlas 40,

273 .whether.I would seal the record as I might 4,0 ikt- a

21 ease :where tfieNft.i :cnOperati.1611 -agreement, .tut

25 the purpoS4,:,p1 eh4e'Wbul4 Me Aanae - limited

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1 circumstances to keep it from the co-defendant,

2 which I would nut ordinarily do but could do in

- 3 certain circumstances.

4 So, 1 am not doing that.

5 Obviously as I mentioned I will do

6 nothing to advertise this to anybody. I am also

7 not doing anything to hide it.

8 It's a plea taken in my courtroom as you

requested. rou advanced the case to do that.

10 The only issue with respect to that was

11 Whether I would take the plea or whether Justice

12 C.Ouviser would take the plea.

_ 14hen_yoilAiret askeg mq_if t tcould.0*_., • •

14 this, the case-was in my part, and there was a

15 cOurt date scheduled in tart 52; but when the

16 defendants Indicated that they didn't need my'

intervention_ on the remaining issue that had to be

18 decided, I had the case transferred to Judge

19 Conviser-

.20 Now the casn is currently pending in

21 front of Judge Conviser, but I Asked the

22 .SUpervising JUdge, Anidge Obus, Whether !I should

take the Plea or Judge COnviser should take the

24 p1.e4.4 Of course, I asked Judge Cohviser what his

25 preference was as well.

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All sides agree that I should do it since

2 I am the person who has been with the case for the

3 past yea:s.

4 Although Judge Conviser will be trying

toe case, he is going to need some time to get up

6 to speed.

-7 It Made Move sense from a practical and

8 administrative point of view for me dc that. 1

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said I would he willing to do that.

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I recognize that there Was interest in

11 this case from the media, from the family, from the

12 civil attorneys.

13 r_don't know.how any of-chem will reaet- —

14 to this or not. • It's really at this point I don't

15 think something that should really enter into my

16 consideration.

17 . Obviously at sentence I'm required to .

18 hear from the victim's family and will, of course,

19 If they want to be heard.

20 I assume that is something the district

.21 attorney takes care of when they deal with the

2? family in this case.

23 In any event between me and Judge'

24 Conviser it was decided that I would do the plea,

25 and that's why I'm doing it and for no other

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2 reason.

2 So, what I understand is that there is an

3 agreement that's in effect, and I have just been

4 presented with a copy of it.

5 its been signed by Mr. Varganyi the

6 defendant, by Mr. Brief as his attorney and by Miss

7 Dicke/ on behalf of the New York County District

ALLerneyYs Office and it's dated today. I will go

9 along with the plea agreement.

10 Me. Brief had'asked me it the nople

11 offeted a plea to criminally negligent homicide,

12. which. was a lesser Charge in this case, and

..recommeneled-;ultistateira-ton-i-ncarcera tory sent an-Ce

.14 whether I would go along with that.

/5 I said if it is the People's position

16 that based on all the factors they need to consider

17e that this-'is an appropriate sentence, ye, I would

, 16 impose anon-jail 'sentence if that was the

./9 agreement, of both parties following the coMpletion,

20 of this' agreement. •

21 '. I had not understood that there was

22 .cooperation. involved, but if there is then there

and if .f. lie-Peop,le. recommend that then, yes, iv

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will cettain4y impose a—pon"-lail sentenCe- ,

2A . 44/4. ORIEFt Thank you, Your ftonor. -• .

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1 THE COURT: Okay. So, is there now an

application then for Mr. Varganyi tc withdraw his

3 plea of not guilty and to plead gui:ty in turn to

4 criminally negligent homicide?

5 MR. BRIEF: I have discussed very

significant issues involved in the defense of this

7 case and the defense that Mr. Varganyi has

asserted.

He after extensive consultation with both

10 myself and his family in particular has asked me on

11 his behalf to withdraw his plea of not guilty and

12 enter a plea of guilty in accordance with the plea

agreement.

14 THE-COURT: This case has been pending in

-15 my part for close to two years. This is a 20013

.16 incident. That I know.

17 A lot has been said about this case. I

18 know everybody's been apprised of my thoughts on

19 both the grand jury minutes, which I found to be

sufficient, and as we have always mentioned perhaps —

21 the difficulties in proving certain aspects of this

22 before the 'trier of fact, not that it. couldn't be '

23 proved but that this like many other cases before

24 me is a triable case.

28 There are obvious Tisks involvfick The

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1 top charge is a Class D Felony C Felony.

2 Excuse me.

3 It's a C Felony Manslaughter in the

4 Second Deg lee, which carries, of course, a state

. 5 prison sentence. of up to fifteen years.

6 On the other hand, if the defendant is

7 acquitted and the - burden of proof is beyond a

8 reasonable dc.vin, there would be no jail and no

9 felony convietior.

10 That has been discussed?

Li Hight?

12. Mn. BRLEF: Yes, Your Honor.

13 ....1HK 'COURT.: .4t.-Uarganyi, you-Itini* --•

14 discussed this with your lawyer f Assume.

15 TNE DEPENDANT: We talked about It, yes.

16 :THE cOORT: You can have a seat.'

17 You understood whit he's been saying?

IS . THE bEFENEANT: I understand.

19 THE COURT: You understand that at a

20 trial the People have to prove your quilt beyond a

21 reasonable deutt?

22 THE DEFENDANT: That .1 understand.

.23 THE COURT All, right. So, has anybody

24 forced you co plead guilty in any way?

25 THR DWFSINDANT: No.

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1 THE COURT: Has anybody promised you

2 anything in exchange for your plea of guilty?

3 THE DEFENDANT: No.

4 THE COURT: Now, there is a cooperation

5 agreement, a plea agreement here.

6 THE DEFENDANT: r have the copy.

7 THE COURT: Have you read the entire

6 agreement?

9 THE DEFENDANT: r read it through, yes.

10 TSE COURT: Did you understand it in

11 full?

12 'THE DEFENDANT: - I understand.

1.3 _THE .COURifl RUYA yolt4iscu55e4 the

14 agreement with your lawyer?

15 THE DEFENDANT: Yea, 1 did.

16 THE COURT: Dc you have any questions?

17 THE DEFENDANT: I did put a question and

18 we talked about it, yes.

19 THE COURT: They are all resolved now?

20 THE DEFENDANT: They arc resolved.

21 THE COURT: Are you satisfied with the

22 services of your attorney?

23 • THE DEFENDANT: Yes.

24 THE cooRT:-, od you- understand that you do

25 ,.not have to plead guilty, that you have a right to

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1 a trial if you want a trial?

2 THE DEFENDANT: Yes, I understand.

3 THE COURT: At that trial it would be the

4 district attorney's burden as I mentioned to prove

5 your quilt beyond a reasonable doubt.

6 Do you understand that?

THE DEFENDANT: 1 understand.

THE COURT: Okay. So,.at a criminal

9 trial you have certain rights that you do no; hen,

10 that is you give up, when you plead geilty.

It's important for me to know that you

.understand these rights, so I have to mention them

- for the record.

The first right would be the right to a

trial by juty.

i Understand that as it presently stands

17 it may be your lawyer's intention to give up or the

18 co-defendant's intention to give up that right and

19 try the case before a judge; but if you wanted to

20 you have the right to have twelve jurors determine

21 whether you were guilty or not guilty, and their

22 verdict would haveto be unanimous. That means all

23 twelve would have to agree.

24 Do.you understand?

25 THE DEFENDANT: 7 understand.

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1 THE COURT: Also at a criminal trial

2 everything happens in open court, so when the

3 witnesses testify your lawyers would have the

4 chance to ask them questions to try to prove that

5 they are not worthy of belief.

6 That's called cross-examination or

7 confrontation of witnesses. You see them testify.

a Your lawyer has a right to question them.

9 Do you understand that?.

10 THE DEFENDANT: Yes.

31 THE COURT: At a criminal trial you have

12. the right to testify if you want.

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You- cen- put an a—defense. You ca7a tS17-

14' witnesses, and you can testify if you want to, but

15 you don't have to. You have the tight to remain

16 silent.

11 So, at a criminal trial they have to

18 prove your quilt. beyond a reasonable doubt.

19 You can decide whether you testify or

. 20 don't testify. If you deterniine not to testify.

21 then you have that right.

You. have the right., to remain silent 4nd

23, 'not testify; and the People Still have to prove

H20 yOur.. guilt tfeyOed a reasonable doubt.

25 Db yop. understand tPat?,

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1 THE DEFENDANT: Yes, I do, sir.

THE COURT: When you plead guilty you

3 admit yout guilt, so in a few minutes / 3M going to

put you under oath. You are actually going to be

al/ocuted.

6 Miss Hickey is going to read a set of

facts that 1 think you agreed to with your

attorney.

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She is going to ask you whether you did

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what is claimed: and in order to take the plea, you

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have to admit that you did what they say you clic.

Do you understand that?

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THE DEFgNDANT: Yes.

14 THE COURT: You give up the right to

15 remain silent in that regard.

'IG You also give up every other right you

. 13 have at a trail.

18 A conviction by plea of guilty is the

' 19 same as a conviction by verdict after trial in that

20 it goes on your record the same 'way.

21. The sentence might be different depending

22 on certain factors because this is an agreed upon.

23 plea,, but the fact of the conyiction, the fact gf

the felony conviction, is the same.

It still goes on your re-cord as a

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conviction for criminally negligent homicide as a

2 Class E Violent Felony.

3 Do you understand that?

4 THE DEFENDANT: .Yes.

5 THE COURT: Let me just say this.

6 I understand that you have consulted or.

7 your lawyer has coesulted with immigration

attorneys with respect to this plea becaose'there

9 ace circumstances under which e- plea to a felony

10 can result in serioUs immigration .consequences for

11 somebody who is net a citizen.

12 1 know 'what. your citizerishiP status is.

.44. -"PI" imequit7e WIP—A0—ssY. it on:the...taco:4,

14 never do,

15 Have you dticussed the iMmigration

16 consequences or tkis.plea or the potential

17- consequences with your attorney) -

THE DEFENDANT: Yes,. I did.

19 THE COURT: You have consulted people'

20 • about, that?

.21 • MR. DRIEp: if I just - ralY for the record

Mr. vargan0 °ailed two separate: and distinct

. 23 immigration attorneys David. GlaA4Man and Alexandra

- Tsit)in:*

-25 • • dIreed that a qui.lty..alea to

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1 criminally negligent homicide should not effect his

2 legal status as an alien. He's been in Amerind: for

3 thirty years.

4 . THE COURT: Strange things have happened

5 in Immigration Coert.

6 You cinderstand that if there are

immigration consequences that you did not.

6 anticipate I will not let you take back your plea?

9 THE-DEFENDANT: I understand.

10 THE COURT: Okay. Is there a discussion

/1 about his right to appeal in here?

12 Is there any agreement?

13 ,There is .a waiVer.

14 MR. BRIEF: Paragraph three, Your Honor.

15 . MS. HICKEY: Paragraph three.

16 THE COURT: There are certain rights of

17 appeal that are non-waivabie just so we all know.

16 MS. HICKEY: Yes.

19 THE COURT: So, what this says is that

20 you are giving up your right to the extent legally

21 permissible to appeal your conviction to any higher

22 court.

23 :Do you undeistand what that means?

24 :rue Di7S4NDAOT: I -understand.

. 25 TRE COURfl Ordinarily when you plead

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1 guilty your right to appeal your conviction

2 survives the plea. You give up your right to

3 trial.

4 . However, as a condition of entering into

this agreement you give up your right to appeal

6 except for those matters that you are not permitted

to waive.

. 8 Have you discussed that with your lawyer? •

9 ThE DEFENDANT: Yes, I did.

10 THE COURT: usually the waiver sets forth

11 chose specific non-wadvable issues, but 1 guess you

12 discussed this.

13 -Okay.- Kr Vaegabyk, ple&se.rtaise:your • --

14 right hand.

15 (Whereupon the defendant was sworn.)

16 THE COURT: Miss Hickey is going cc read

r17 . the allocution, which 1 think is what the agreement

18. is.

19 . MS. HICKEY': 61r. Vsrganyi, you will

20 allocute under oath that you engaged in the

21 Eolloaing criminal conduct end failed to perceive

22 substantial and unjustifiable risk of death in

23 doing so! .

a."1 . that you were an employee of New York

25 Crane- and J.F. Lomma Incorporated whose duties

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1 included the service and maintenance of James

2 Lomma's Kodiak Cranes.

3 Kodiak was the manufacturer of a

particular make of tower crane that Lomma

5 Incorporated owned an, Tented to contractors for

use on construction sites many of which were in New

7 York City.

V You also supervised others in the service

9 and maintenance of those cranes.

10 gleginning in May o/ 2007 it became

1! apparent that those cranes required the repair of

12 their turntables by the replacement of a component

part- 41-beari44-..

14 Even though at least two companies

15 located in the United States could provide the

16 replacement biarings that the cranes needed, one of

17 which was the original manufacturer of the original

18 bearings inthe cranes, Mr. Loma was dissatisfied

19 with the time it would take those companies to

20. : deliver tke bearings. e

21 tou understood, that your supervisors did

27r not want ro.wait for the S.S. cdmpanies to replace

bearirign; and in late June or July 'of- -2007 and

with LoMma cs.knowledgep• Oermissiovi ancrauthority

yo4 located a bearing. manUfActistrer cailtd gt8,that

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1 was located in the People's Republic of China.

2 Lomma lever asked you any questions about

3 this company and never required you to make any

4 inquiries regarding that company's reputation or

5 the quality -ef Lts work nor did Lemma require you

6 to locate and speak to other customers of RTR or to

7 independently verify any of the claims on the RTR

8 webslte.

.9 You communicated via email with the sales

10 manager of that company and sent specifications and

12 drawings to the RTR sales manager to be used for

12 the manufacture of the bearing Lomma Incorporated

. wished to purchase.

14 At no time did you have an engineering

15 degree or any training in the design or manufacture

16 -of such equipment 'fact that Lomma knew.

17 Lomma never asked you what you were

18 providing to RTR for use in the design of the

19 bearing nor lid LOMM4 obtajn assistance or

20 oversight of a professional engineer or any other

21 person competent to design as complex a piece of

22 equipment as a bearing.

23 The specifications you sent to -the sales

24 'manager of RIR celled for weldj.ng to be done by the

25 manufacturer -et the bearing..

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1 The sales manager of RTR wrote to you in

2 an email warning you that the welding should be

3 done by New York Crane or a company other than RTR.

.4 You should not have accepted her

. 5 subsequent agreement to perform the welding.

6 During.the time that yo0 were arranging

7 for the manufacture and purchase of this bearing

8 Lomma never advised you about the requirements that

9 the New York City Department of Buildings had

10 communicated to him before such a bearing would be

11 allowed to be'placed in a crane that was operating

12 on a eonstrUccion site in New -York City.

13 leeembei.of 2217 the beari.414..that gou

14 . -ordered from RTR arrived after you had procured a

15 final drawing from RTR for the designed bearing at

16 the request of your supervisors for review. -

17 Neither - you or as 'far as you know Lorna

12 or anyone else wfio worked for Lomma arranged to

19 have the weld that was performed by RTR tested to. -

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20 insure its quality.

21 in April or• 2008 this beering•was placed

. 22 . flito a Kodia.6 Cfeho that was being used Oh a

:.23 • construction'sitj on the .corner. Of 91st. Street and , . . . ,First Avenue •ih.New York•County.• .

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25 . kat.st in April of 200ra second bearingi .. .

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1 that you had ordered from RTR arrived. This second

2 bearing contained a weld that was overtly flawed.

3 You informed RTR about the condition of

4 this weld, and RTR agreed to pay for its repair an

5 arrangement about which Lomma knew.

6 Despite the visible inadequancy of the

7 weld on the second bearing RTR produced neither you

8 nor Lomma made any attempt to verify the adequacy

9 of the weld on the first bearing, which remained in

10 the turntable of the Kodiak Crane on the

11 construction site on 91st Street.

12 On May 30th, 2008, the manufacturer's

13 xeld

on the lirst.bearing_received from -RTR:broke

14 apart, and the upper portion of the crane fell to

15 the ground killing two men Donald Leo and Ramadan

16 Kurtash (phon).

17 Are those facts true?

18 THE DEFENDANT: It's true.

19 THE COURT: Okay. SO, let's enter the

20 guilty plea.

21 COURT CLORK: Tibor varganyi, do you now

22 withdraw your previously entered plea of not guilty

.23 and do you now plead guilty to the crime of

24 Criminally negligent homicide to cover and satisfy

25 '7Ihdictment 852 of 2010?

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1 Is chat your plea, nir?

2 THE DEFENDANT: I'm guilty sir, yes.

3 I plead guilcy.

THE COURT: Okay. So, what do you want

5 to do?

6 MR. BRIEF: Can we set a January

sentencing late?

THE COURT: Sure.

9 January 18th.

10 MS. HICKEY: That's fine. .

11 THE COURT: How's the 25th?

11 MR. BRIEF: The 25th would be better.

)1. THE COURT: January 25.th.

14 MR. BRIEF: I have one quick question

15 about probation.

.16 Does Mr. Varganyi have to make an

17 appointment to. see probation now?

18 THE COURT: Why don't we set a date.

19 The problem is the probation report and

20 the sentence date has to be six weeks after the

21 order.

22 We can have him come in January 25th, and

23 we can sena him for .a probation report after that.

24 MR. BRIEF: All right.

25 THE COURT: Tuesday the 25th if that's

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DIANA DAVIE -Halle Sr. Court Reporter

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1 okay we wtli pul, it down for sentence, and then we

wtii adjourn It.

It won't be for sentence. It will be to

order the probation report.

R. BRIEF: Thank you, Your Honor.

MS. HIM?: Thank you.

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8 CERTIFIED 'CC: BE A TRUE AND ACCURATE TRANSCRIPTION OF TUE MINUTES TAKEN SY ME.

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