Lockport Union-Sun & Journal Online

November 13, 2013

Mongielo's change of venue motion denied

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

Lockport Union-Sun & Journal — The location for David J. Mongielo’s third trial will be Lockport Town Court, a fact confirmed by Justice Raymond E. Schilling’s denial of a change of venue request Tuesday.

Now all the trial needs is a date. Town Prosecutor Bradley Marble and Frank Housh, Mongielo’s attorney, will return Dec. 3 to decide that. 

Mongielo, the auto shop owner who’s accused of violating the town’s electronic sign ordinance, had filed a pair of motions asking for a change of venue and a hearing on selective prosecution. 

Schilling denied the change in venue because the town court doesn’t have the authority to make that call, the judge wrote in his decision.

“A change of venue motion must be made to a Niagara County Court Judge,” Schilling wrote.

The motion was made in part because Mongielo didn’t believe he could receive a fair trial in Lockport because of the notoriety of his legal battle with the town over his sign and because of his own clashes with town officials.

Schilling’s decision said the question of whether a trial can be fair in light of community prejudice or extensive publicity is not addressed in the law.

Even if it was addressed, Schilling said the court would deny the motion because the “papers (Mongielo’s filing) do not allege the standard of proof necessary to sustain a transfer and because of the defendant’s own actions to involve the Fourth Estate into this case.”

Mongielo’s request for a hearing on selective prosecution was denied because of a lack of evidence, according to the decision.

There is a good chance the trial won’t be held until 2014. Housh said Tuesday that he has another case, a lengthy U.S. District Court drug trial, slated to start Dec. 10, that will probably keep him from being available for most of December.

“I see it going into next year,” Marble said. “The commissioner of jurors wants three or four weeks to get everybody together and Frank has that federal trial.”

Schilling retires Dec. 31, meaning a new judge would take over the case. It’s unknown whether Justice Leonard G. Tilney or incoming Justice Cheryl Antkowiak would preside.

Mongielo is to be tried by a jury for allegedly violating the town’s electronic sign ordinance, which prohibits signs from changing their format or message more than once every 10 minutes. It’s the second time Mongielo has been charged with violating the ordinance.

Mongielo has been convicted twice, but never by a jury. He was sentenced to 15 days in Niagara County Jail and fined on April 17, 2012, in Lockport Town Court for his second violation of the ordinance. The jail sentence was the result of the violation coming within the one-year conditional discharge that Mongielo received on Sept. 14, 2010, for his first violation of the sign ordinance. 

Niagara County Judge Matthew Murphy ruled in October 2012 that the second conviction had to be overturned and a new trial given. But that new trial was declared a mistrial in July after Schilling started jury selection without a court reporter present.

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