Lockport Union-Sun & Journal Online

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March 6, 2013

Judge to decide on Mongielo motion

Lockport Union-Sun & Journal — TOWN OF LOCKPORT — A town judge will decide on a motion to throw out the charges against David J. Mongielo.

Town Justice Raymond Schilling said Tuesday he will issue a written decision March 27 concerning Mongielo’s motion to quash the charges the auto shop owner is facing. The motion questions the jurisdiction of the town court.

Town prosecutor Bradley Marble filed a response Feb. 5 to Mongielo’s motion. Mongielo originally filed the document in November, followed by an amended motion in December. The two sides met Tuesday night for a hearing on the motion.

Mongielo told Schilling the ability to make a court decision is in the power of a jury.

“People are supposed to make a determination, not a single justice,” he said.

Marble’s response said the town court’s jurisdiction was rooted in the state constitution of 1821, which required all towns to have a supervisor and justices of the peace. Marble also cited state criminal procedure law, which said town courts have always maintained trial jurisdiction over misdemeanors and violations.

In a written response, Mongielo said state criminal procedure law wasn’t law but rather a statute. A statute is created by politicians and does not exist under the U.S. Constitution, Mongielo argued.

Mongielo is charged with violating the town’s electronic sign ordinance that prohibits them from changing the format or message more than once every 10 minutes. It’s the second time Mongielo has faced such a charge.

Mongielo was sentenced to 15 days in Niagara County Jail and fined back on April 17 in Lockport Town Court by Schilling, after being found guilty the previous month in a December 2011 nonjury trial. The jail sentence was the result of the violation coming within the one-year conditional discharge Mongielo received on Sept. 14, 2010 for his first violation of the sign ordinance. He was fined $750 at that time, $250 for each count of violating the ordinance.

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