Lockport Union-Sun & Journal Online

July 31, 2013

Mistrial declared for Mongielo

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

Lockport Union-Sun & Journal — An error by a judge led to a mistrial Monday in the ongoing case against David J. Mongielo, the Town of Lockport business owner facing charges of violating the town’s electronic sign ordinance.

Lockport Town Justice Raymond E. Schilling made the ruling Monday in response to a motion by Mongielo’s attorney, Frank Housh. Housh said in court that Schilling began Monday’s jury selection process without a court reporter present.

Housh said even though the session was digitally recorded, that’s not enough when someone’s freedom was at stake.

”You can’t rely on the recording,” Housh said. “You can’t swear the panel outside the presence of a court reporter.” 

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

Monday was the start of jury selection for Mongielo’s trial. Not a single juror had been interviewed as over 40 potential jurors sat in court for about an hour. A jury would consist of six members and an alternate.

Now, the process will start again as Schilling said Housh has until Oct. 1 to file motions. A date for oral arguments will be determined later, after town prosecutor Bradley Marble responds to the motions, Schilling said.

After court, Housh said he plans to file motions asking for Schilling to recuse himself and for a change in venue. He added that he would do some research to see if another trial might constitute illegal double jeopardy for Mongielo.

Mongielo’s case has been quite a journey so far.

The Town of Lockport auto shop owner was originally sentenced to 15 days in Niagara County Jail and fined on April 17, 2012 in Lockport Town Court.

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. The condition for the discharge was that Mongielo could not break the sign ordinance again.

But, Niagara County Judge Matthew Murphy ruled in October the second conviction had to be overturned and a new trial given.

If Mongielo is convicted this time around, he would face up to six months in Niagara County Jail.

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