Lockport Union-Sun & Journal Online

March 6, 2013

Judge to decide on Mongielo motion

BY JOE OLENICK
Lockport Union-Sun & Journal

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.

The condition for the discharge was that Mongielo could not break the sign law again. Nearly a year after the first conviction, Mongielo’s sign was videotaped advertising a fundraiser for an injured Niagara County Sheriff’s deputy during which the image changed every few seconds. 

But, Niagara County Judge Matthew Murphy’s ruled in October the second conviction had to be overturned and a new trial given. That was partially because Mongielo was representing himself and the court did not perform a “searching inquiry” to make sure Mongielo was aware of the implications.

Mongielo, representing himself Tuesday, was questioned by Schilling as part of the inquiry. But Mongielo did not answer the questions, saying the inquiry violated his right to defend himself.

“That is your opinion,” Schilling said.

Mongielo also renewed his request for a change in venue, citing a conflict of interest. Marble said all motions were supposed to have been filed at the same time.

Mongielo said Tuesday he has filed a complaint against the town and Schilling with the New York State Commission on Judicial Conduct. Mongielo asked Schilling to hold off on making a decision until the commission ruled.