Niagara Gazette

December 8, 2013

Latest Mongielo court motion is denied in Lockport

BY JOE OLENICK
Niagara Gazette

— LOCKPORT — David J. Mongielo will return later this month to Lockport City Court after denial of his motion Wednesday to dismiss charges from his traffic checkpoint arrest, then face sentencing in January for his violation of the Town of Lockport's sign ordinance.

At a city court hearing Wednesday, Lockport City Court Judge William Watson dismissed an argument by Mongielo's attorney Frank T. Housh questioning the legality of the June 27 city police checkpoint.

Mongielo is to return Dec. 16 to city court, at which point he will either agree to a plea or receive a trial date. It's also possible he could file an appeal with Niagara County Court and obtain a stay of the trial, Housh said after court.

Housh said there hasn't been any discussion of a plea, but they are open to ending the matter reasonably.

"My client and I are anxious to find a reasonable disposition,” he said but then added, “We believe my client didn’t commit a crime.”

Back on June 27, Mongielo objected to a traffic checkpoint on Lincoln Avenue on the city and town border and was ordered out of his car. Mongielo was reportedly thrown to the pavement by officers who arrested him on a variety of charges, including resisting arrest and using a cellphone while driving. Mongielo has said he was using the phone to shoot video of the officers.

He tried to file a police brutality suit without an attorney, but it was dismissed by State Supreme Court Justice Catherine Nugent Panepinto on Nov. 14 because the officers weren’t properly served with the papers.

Housh said he disagrees with Watson's ruling, but would have to review it before deciding how to proceed. He said traffic checkpoint was unconstitutional, citing a U.S. Supreme Court case that said such traffic stops have to be specifically for traffic safety and documented.

There was no documentation, other than copies of the tickets given out, Housh said. And a Lockport officer testified that the checkpoint was for "generalized crime control," Housh said.

In the court battle over the sign, on Tuesday night in Lockport Town Court, Justice Leonard G. Tilney Jr. took over Mongielo's case from retiring Justice Raymond E. Schilling, who has been overseeing the matter for three years.

Tilney scheduled sentencing Jan. 7 for Mongielo’s violation of the conditional discharge Schilling sentenced him to in 2010 for Mongielo’s first conviction on a charge of violating the town’s sign ordinance. The law bans electronic signs that change message or format more than once every 10 minutes.

Mongielo faces up to 15 days in jail or a fine for the conditional discharge violation. While serving that conditional discharge, Mongielo was charged with violating the law a second time in August 2011. The electronic sign in front of Mongielo’s business on Robinson Road was used to show a video advertising a fundraiser. The one-year conditional discharge would have expired the following month.

Schilling found Mongielo guilty of the conditional discharge violation on May 29, but delayed sentencing until after the trial on the second sign ordinance violation. A trial date may be set on Jan. 7.

Mongielo was convicted of that second ordinance violation in a December 2011 nonjury trial before Schilling, but in September 2012, County Judge Matthew J. Murphy III overturned the conviction, saying Mongielo was entitled to a jury trial.