Former Prosecutor Grilled at Construction Accident Trial Over Evidence Defense Should Have Received

Former assistant district attorney, Diana Florence, walks out of a Manhattan courtroom after a case she was prosecuting was dismissed, Ben Fractenberg/THE CITY | Jan. 5, 2020.

During intense questioning by a former colleague, the one-time head of the Manhattan DA’s construction unit said she had “no recollection” of a dismissed Buildings Department summons.

In the trial of two construction executives facing criminal charges stemming from a near-fatal accident at an East Harlem construction site, there was a dramatic role reversal yesterday for a former star prosecutor in the Manhattan District Attorney’s office.

Instead of asking her own tough questions of witnesses on the stand, Diana Florence, the former head of the office’s construction task force, found herself on the receiving end of a rough grilling as she appeared on the stand under subpoena from defense attorneys in the case.

The toughest questions, however, came not from the defense, but from one of her former colleagues in the DA’s office who delivered a sometimes withering barrage of queries as Florence shifted uncomfortably and repeatedly sipped from a glass of water.

Florence left the office, then headed by Cyrus Vance, in 2020 amid a storm over her failure to turn over in a timely fashion evidence crucial to the defense in a bribery case. A similar concern has now arisen in this trial.

At issue is what role, if any, Florence — who ran for district attorney in 2021, finishing well behind current DA Alvin Bragg — played in the dismissal of a potentially costly summons issued to a construction worker who mishandled a “mini-crane” at the site. On June 25, 2018, the overloaded crane toppled from the fourth floor of the project on East 126th Street, causing a horrific accident that left one worker with severe brain injuries and another with disabling spinal damage.

Attorneys for the defendants, Timothy Braico, 46, and Terrence Edwards, 44, have accused the DA’s office of withholding evidence about the summons that would have aided their case. Such so-called Brady violations have led to the dismissal of several criminal cases across the city.

According to the defense, the machine operator, Stephen Lewis, originally told investigators that he had prior experience running the Jekko mini-crane used that day. The lawyers allege that he changed his story at the prosecution’s direction to one that put much of the blame on the defendants. Lewis’s current account, according to prosecutors, is that he was told to operate the machine, and was given “limited instruction” in its use by Edwards.

Defense attorneys allege that his story shifted after district attorney’s investigators prodded officials at the city’s Department of Buildings (DOB) to dismiss the summons a few weeks after the accident. Florence, who oversaw the unit handling the case, was questioned intensely about her role both by the prosecution and the defense.

The prosecution has conceded that the office asked that the summons be dismissed. Prosecutors said they only recently learned that the request was relayed by Florence — unbeknownst to the assistant district attorneys currently involved in the case. In a letter submitted to the court prior to yesterday’s hearing, prosecutors stated that there was no “secret deal” on their part aimed at withholding the facts from the defense.

The facts themselves remain hazy. Earlier this week, James McElligott, an investigator from the city’s Department of Investigation testified that Florence had asked him to get DOB to drop the summons, but said he took no notes of the meeting and didn’t recall pursuing the matter.

Florence, who said she was on vacation in Hong Kong during the time the summons was dismissed, also drew a blank. “I have no recollection of the summons at all, and it doesn’t make sense to me to dismiss something when the investigation had just started,” she told defense attorney Marc Agnifilo. She added that she did not “recall any conversations with Mr. McElligott about it.”

But the questions grew sharper when Assistant District Attorney Gary Galperin, a top prosecutor in the office, pressed Florence as to why, as supervisor in the construction task force which was handling the investigation, she hadn’t discussed the matter with McElligott, who often worked on cases with her.

“I take it there were times you had conversations with Mr. McElligott that lasted just a couple minutes, Ms. Florence,” Galperin said. When Florence expressed confusion, Galperin raised his voice. “That’s what we’re talking about, Ms. Florence,” he said.

At two separate points during the tense questioning by her former colleague, Judge Maxwell Wiley, who is hearing the case without a jury, intervened, telling Galperin to allow Florence to finish answering his questions.

After Florence stepped down, Wiley said he would consider the defense’s request to call another witness to the stand, the assistant district attorney Meredith McGowan, who is one of the two prosecutors trying the case.

The trial, already a month long, is not due to begin again until July 17.

This story was published on June 29, 2023 by THE CITY.
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