LOCKPORT – David J. Mongielo, the Lockport businessman who has been fighting the Town of Lockport sign ordinance for four years, won’t have to go to jail for violating it, at least for now.
Niagara County Judge Matthew J. Murphy III agreed Wednesday to hear an appeal of the 10-day jail term imposed Tuesday night on Mongielo by Town Justice Leonard G. Tilney Jr., and stayed the sentence in the meantime. No date was set for the appeal, although Murphy told the attorneys that an accelerated schedule will be set.
Tilney had ordered Mongielo to surrender at 4 p.m. Wednesday to begin serving his sentence in Niagara County Jail. The sentence was imposed for violating a conditional discharge Mongielo was given after his first sign violation in 2010. Now-retired Town Justice Raymond E. Schilling concluded that Mongielo did so by posting a series of changing images on the LED signboard in front of his Robinson Road auto repair shop Aug. 25, 2011.
The town has a law against signs that change “format” more than every 10 minutes. Mongielo’s 2011 violation was the reason for a second citation .
However, Tilney dismissed that charge of his own accord Tuesday, saying that he thought 10 days in jail was enough to cover both cases.
Wednesday, Frank T. Housh, Mongielo’s attorney, complained that Tilney’s move to dismiss the second case was illegal. “Although it may seem counterintuitive, we want a jury trial,” he said. “It’s not for the judge to decide what is an appropriate global settlement and impose it without notice.”
“I’ve never heard of a defendant appealing the dismissal of a case,” Murphy said.
Mongielo said after appearing in court that “I want the people to decide the law. I don’t want the judge to decide the law.”
“We’re just wasting time, and there’s nothing to talk about on appeal,” Town Prosecutor Bradley D. Marble said. “There is no merit to any of (Housh’s) arguments.”
Housh asserted that the person who took incriminating video of the flashing sign in 2011, town Republican chairman and Zoning Board member Donald J. Jablonski, is a political ally of Tilney’s because the GOP endorsed Tilney to run for justice. “That is enough to create the appearance of impropriety,” Housh said.
Marble responded, “The fact that Judge Tilney was endorsed by the Republican Party is irrelevant.”
Mongielo, a former Republican committeeman, has run twice for town supervisor, once as a GOP insurgent and last fall under his current Conservative Party registration. He was decisively beaten both times by Town Supervisor Marc R. Smith, a Republican.
Housh also presented the arguments he had used unsuccessfully Tuesday in trying to get Tilney to recuse himself. They centered on the affidavit of Jeffrey P. Wick, the former Somerset town justice, that he talked about the Mongielo case with Tilney sometime last summer outside the County Courthouse.
Wick wrote that Tilney’s comments “strongly suggested to me that he assumed Mr. Mongielo’s guilt and was biased against him in a way which prevented him from imposing a fair sentence.”
“The affidavit of Jeffrey Wick is laughable,” Marble said, pointing to what he considered its lack of specifics.
Wick left the bench after pleading guilty to harassing his wife and is now on probation for endangering the welfare of a child and second-degree criminal contempt. He said in court during the latter case that he was undergoing treatment for bipolar disorder.
Meanwhile, Mongielo’s trial in Lockport City Court has been postponed from Feb. 25 to March 4. He faces resisting arrest and other charges stemming from a confrontation with police June 27 at a traffic checkpoint on Lincoln Avenue.