LOCKPORT - David J. Mongielo will have a new trial on charges of violating the Town of Lockport ordinance against video signs, as the town prosecutor admitted Friday that he should have been tried in front of a jury.
The admission by Bradley D. Marble came during more than an hour of oral arguments in Niagara County Court on Mongielo's appeal of two convictions for sign law violations and a resulting 15-day jail sentence, which was stayed pending a ruling on the appeal.
Mongielo's attorney, Frank T. Housh, who was hired after the second trial, noted that the town code says any violation of the ordinance was to be treated as a misdemeanor, which is a crime requiring trial by jury, according to the U.S. Constitution.
The case had been approached as a noncriminal violation, which does not require a jury trial.
Housh said he wants a change of venue for the trial because in his opinion, Mongielo was denied a fair trial in both of his previous cases in front of Lockport Town Justice Raymond E. Schilling, who convicted Mongielo of violating the town's law banning signs that change more than once every 10 minutes.
Marble said he doesn't think a change of venue is needed because there will be a jury of community members.
The admission didn't settle every aspect of the appeal, however. County Judge Matthew J. Murphy III still must decide whether to set aside the jail sentence, which was imposed by Schilling because Mongielo's second sign violation came during a one-year conditional discharge imposed after the first trial in 2010.
Mongielo was convicted of his second violation and violating the conditional discharge after a Dec. 28 nonjury trial, although Schilling didn't announce his verdict until March 20.
Housh said a conditional discharge should have been the subject of a separate hearing. Marble said he doesn't see such a requirement in the state Criminal Procedure Law.
Housh also challenged the constitutionality of the sign law, saying it's too vague to pass muster. He said the law bans signs that change format, without defining what is meant by the word "format."
Marble noted that Housh's appeal didn't challenge any of the factual evidence.
"We're not conceding even for a moment that my client violated the sign law," Housh said.
Although the signboard is used mostly to advertise Mongielo's auto repair shop on Robinson Road, he was charged with violating the law while he was using the board to advertise community fundraisers.
In the second instance Aug. 25, 2011, he was promoting a fundraiser for Niagara County Sheriff's Deputy Allen Gerhardt, who lost both legs on an on-duty car crash last year.