Indictment against Riverhead contracting company and its owner is dismissed by court

The December 2024 indictment of Southampton contractor Robert Terry and his Riverhead-based company, Terry Contracting & Materials on prevailing wage law violations and related charges has been dismissed in its entirety by Suffolk County Supervising Judge Richard Ambro.

Terry and his company were indicted for Willful Failure to Pay the Prevailing Wage Rate, and other related charges, for allegedly misclassifying his employees’ work categories on certified payrolls, shorting workers more than $83,000, on a public works contract for the Davis Park Marina Improvement project in the Town of Brookhaven. 

According to the indictment, Terry allegedly classified his employees under the wage rate for “laborers,” which is lower than the wage rate for “dock builders,” though the employees were performing tasks necessitating the higher salary rate.

There was no charge to the grand jury defining the two classifications, without which the jurors could not understand the critical difference between the two categories, Ambro ruled in a decision signed Oct. 16. 

Instead, the jurors heard conclusory statements by workers for the New York State Department of Labor “that certain work that was performed was in fact dock building and not labor,” Ambro wrote. Those statements amounted to legal advice and witnesses before a grand jury cannot give legal advice to the jury. When they do, the indictment should be dismissed, Ambro wrote. The conclusory testimony also invaded the grand jury’s role as fact-finder, he wrote.

Ambro also ruled that the New York State Labor Law under which Terry and his company were charged is unconstitutionally vague. There is no legal or dictionary definition of the job classification of dock builder in the statute or in any published guidance by the DOL, Ambro said. The statute failed to give fair notice to the ordinary citizen that the prohibited conduct was illegal. Therefore it is unconstitutionally vague, Ambro ruled.

It is clear that the evidence is insufficient to support the allegation that the defendants “willfully” violated the statute, the judge ruled.

The court dismissed the second count of the indictment, charging the defendants with falsifying business records, for the same reasons. “In the Court’s view, those prosecutorial errors potentially prejudiced the ultimate decision reached by the Grand Jury under count two as well,” Ambro wrote.

The third count of the indictment, a misdemeanor, was dismissed as time-barred. Criminal Procedure Law requires misdemeanor prosecutions to be commenced within two years of the commission of the crime. The prosecution of the misdemeanor was required to be commenced by August 2020, but it was not commenced until late 2024, and so must be dismissed, the judge ruled.

Terry’s attorney. Michael Cornacchia, said it is significant that Judge Ambro found there was a lack of evidence to prove that Bob Terry, or his company committed any crimes or had any intent to do so.

“My family and I always believed in our system of justice, and our belief was borne out by Judge Ambro’s decision,” Terry said in a statement released last week. 

“We are thankful that the truth has finally come out that my company and I did not commit any crimes and are innocent of the now dismissed charges. We are grateful to our many clients, employees and friends who stood by us during this challenging period. We look forward to continuing to serve our community as a reliable and principled employer,” he said.

“The Court’s decision noticed a deficiency currently in NY regulations defining dock workers.  We have advised the NY State Department of Labor of the ruling, who are working on measures to remedy them to better protect workers in the future,” a spokesperson for Suffolk District Attorney Ray Tierney said in an emailed statement.