Niagara Gazette

January 22, 2014

Mongielo granted stay of 10-day jail term

Niagara Gazette

Niagara Gazette — A Town of Lockport man's 10-day jail sentence related to a violation of the town's electronic sign ordinance was put on hold Wednesday afternoon.

Niagara County Judge Matthew J. Murphy III granted David J. Mongielo a stay Wednesday afternoon, putting off the sentence that the Town of Lockport auto shop owner received Tuesday night. The stay is in effect until Murphy rules on Mongielo's appeal of the sentence.

Frank Housh, Mongielo's attorney, filed the appeal Wednesday in Niagara County Court. Had Murphy not granted the stay, Mongielo would have reported to Niagara County Jail at 4 p.m., Housh said.

"My client is ready to follow the court's orders," he said.

Mongielo was sentenced Tuesday night in Lockport Town Court by Justice Leonard G. Tilney Jr., who also threw out a second ordinance violation. Mongielo was given jail time for breaking a term of the conditional discharge he'd received in 2010 when he was sentenced for his first violation of the Town of Lockport’s electronic sign ordinance.

The ordinance bans electronic signs that change message or format more than once every 10 minutes.

While under the one-year conditional discharge, Mongielo was charged with violating the sign ordinance a second time in August 2011. The electronic sign in front of Mongielo’s business on Robinson Road reportedly was used to show a video advertising a fundraiser.

Mongielo was convicted of that second ordinance violation in a December 2011 nonjury trial, but in September 2012, Murphy overturned that conviction, saying Mongielo was entitled to a jury trial. A trial date had not been set for the second violation when Tilney dismissed it Tuesday.

The appeal of the discharge sentence is based on three issues, Housh said. The first is Tilney sentencing Mongielo for the conditional discharge violation and throwing out the second ordinance violation. Throwing out the violation is against Murphy's earlier ruling — and Mongielo's wishes.

"He wants a jury trial," Housh said.

The second issue is Tilney stating he believed Murphy's earlier ruling indicated a jail sentence is appropriate. Housh said the law says a sentence is only up to the sentencing judge.

The third issue is related to the motion Housh filed at the hearing Tuesday night. The motion asked Tilney to recuse himself because of a perceived political bias. Mongielo was the Conservative Party candidate in the 2013 election for Lockport town supervisor, which he lost to Marc R. Smith.

On Tuesday, Tilney dismissed a recuse motion from Housh, saying it was based on opinion and not fact.

A date to hear Mongielo's appeal has not been set yet in Murphy's court, Housh said.

In his other court battle, Mongielo will return Feb. 25 to Lockport City Court to stand trial on charges stemming from his June 27 arrest at a Lincoln Avenue traffic checkpoint, on the city-town border. Mongielo was ordered out of his car and 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.

Contact reporter Joe Olenick at 439-9222, ext. 6241, or follow him on Twitter @joeolenick.