Lockport Union-Sun & Journal Online

March 22, 2014

Sign case goes on

BY JOE OLENICK joe.olenick@lockportjournal.com
Lockport Union-Sun & Journal

Lockport Union-Sun & Journal — Niagara County Judge Matthew J. Murphy III has extended the stay of David J. Mongielo’s jail sentence until June, while Mongielo’s attorney has a second chance to file an appeal.

In a Friday hearing, Murphy ruled extending the stay to June 12 from May 22 and gave Mongielo’s attorney Frank Housh a do-over in filing his appeal of the 10-day jail sentence Mongielo received in January. The appeal has to be filed by 4 p.m. March 28, Murphy ruled, or the stay would be lifted and Mongielo would be on his way to the Niagara County Jail.

”This is your last chance,” Murphy told Housh in court.

Previously, Housh had sent a notice of appeal to Nancy Brooks at the Lockport Town Court, but Brooks is the town clerk and has no duties related to the court. The notice was never received by the court clerk, the judge said. Housh said the notice was mailed in a timely manner to the court with all of the right information, with the exception of Brooks’ name. 

Town Prosecutor Bradley Marble said Mongielo’s appeal violated three parts of criminal procedure law by not filing the appeal correctly. In a motion filed Thursday, Housh’s argument said the mistake was either his or a clerical error, not Mongielo’s, so he shouldn’t be punished for it.

Murphy gave deadlines of May 2 and June 6 for Housh and the town respectively to file court briefs. The sides will return to Murphy’s courtroom on June 12 for oral arguments concerning Mongielo’s appeal.

”The judge did as he was supposed to do, follow the law,” Housh said afterwards.

Marble said another delay in the long-running “sign case” wasn’t all that surprising. But even though the case is now in its fifth year, it won’t affect the outcome that Mongielo broke the law, he said.

”At the end of the day, it doesn’t change the facts,” Marble said. 

Mongielo was sentenced in Lockport Town Court for breaking 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 town’s ordinance bans electronic signs that change message or format more than once every 10 minutes. The electronic sign in front of Mongielo’s Robinson Road business reportedly was used to show a video advertising a fundraiser in August 2011, which is when he was under the one-year conditional discharge.

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.

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