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LOCKPORT – Even though David J. Mongielo is guilty of violating the Town of Lockport sign ordinance, the auto shop owner is entitled to a new trial because of errors by the town justice who presided over his case, Niagara County Judge Matthew J. Murphy III has ruled.
In an eight-page ruling sent Monday to attorneys in the case, Murphy said Town Justice Raymond E. Schilling did not go through the proper procedure before allowing Mongielo to proceed without an attorney in the December 2011 trial that led to a 15-day jail sentence for violating the town’s law against signs that change more than once every 10 minutes.
Murphy scolded Mongielo for “his petulant resolve to again ignore the ordinance when he saw fit. Mr. Mongielo was ill-advised to have engaged in such conduct, which was disdainful of both the trial court and the law.”
Mongielo, whose Robinson Road shop has a video signboard, has served no jail time because his sentence was stayed pending an appeal, heard by Murphy on Sept. 21.
At that hearing, Town Prosecutor Bradley D. Marble acknowledged that Mongielo should have been offered a jury trial. Schilling, presiding at a nonjury trial, found Mongielo guilty of separate sign violations in 2010 and on March 20, when he issued a verdict from the Dec. 28 trial.
The town’s ordinance says that any violation is a misdemeanor, which under New York law means the defendant is entitled to a jury trial.
Murphy barely mentioned that issue, instead concentrating on Schilling’s failure to go through the “searching inquiry” required before a defendant is allowed to go to trial without a lawyer.
“While the transcript of that trial does demonstrate that sufficient legal evidence was presented to support the trial court’s finding that Mr. Mongielo’s guilt was proven beyond a reasonable doubt, that conviction must nevertheless be reversed and remanded for a new trial,” Murphy wrote.
But the 2010 conviction stands because it wasn’t appealed in time, Murphy wrote.
“We don’t concede that my client committed the offenses,” said Frank T. Housh, whom Mongielo hired after the second trial.
Frank LoTempio represented Mongielo at the 2010 trial, which ended with a conviction, a $750 fine and a one-year conditional discharge, any violation of which was to trigger a 15-day jail sentence for Mongielo.
Mongielo apparently thought the one-year discharge expired Aug. 24, 2011, the first anniversary of the verdict. His second violation of the sign law occurred Aug. 25, 2011, when Mongielo, who usually uses the video board for business purposes, advertised a fundraiser for an injured Niagara County sheriff’s deputy.
Murphy said Mongielo apparently felt free to violate the sign law as soon as he thought he wouldn’t have to risk a jail term for doing so.
But actually, Murphy said, the one-year clock started running the day Schilling announced the sentence, which was Sept. 14, 2010. Thus, the Aug. 25, 2011, offense made Mongielo eligible for a 15-day jail term, which Schilling imposed April 17.
Since the second conviction was reversed, so was the violation of the conditional discharge, Murphy ruled.

email: tprohaska@buffnews.com