LOCKPORT – David J. Mongielo, the auto repair shop owner who faces a 10-day jail term for violating the Town of Lockport’s law against flashing signs, will be allowed to present his appeal despite mistakes by his attorney.
Even though court precedents would have justified throwing out Mongielo’s appeal and sending him to jail because of paperwork errors by defense attorney Frank T. Housh, Niagara County Judge Matthew J. Murphy said Friday, “True justice will be served only by permitting the defendant to have the appeal on his underlying conviction heard on the merits.”
Murphy gave Housh until 4 p.m. next Friday “to file a proper notice of appeal.” After that, Housh will have until May 2 to submit an accompanying legal brief. Town Prosecutor Bradley D. Marble will have until June 6 to write a response, and the appeal will be argued before Murphy at 3 p.m. June 12. The stay of the 10-day sentence was extended to that date.
On Jan. 21, Town Justice Leonard G. Tilney Jr. sentenced Mongielo to 10 days in jail for violating a conditional discharge on his original 2010 sign ordinance conviction.
The town’s law bans signs that change “format” more than once every 10 minutes. Mongielo, a political opponent of the town’s ruling Republicans who has run unsuccessfully for town supervisor twice, was cited for illegal use of the LED signboard in front of his Robinson Road store in 2010.
After then-Justice Raymond E. Schilling convicted him in a nonjury trial and imposed a one-year conditional discharge, Mongielo was cited again for using the signboard Aug. 25, 2011, during the one-year discharge period.
Last May 29, Schilling convicted Mongielo of violating the conditional discharge but did not resentence Mongielo before his term in office ran out Dec. 31. Schilling was waiting for the jury trial Murphy ordered on the second violation, but on Jan. 21 Tilney, who took over the case, dismissed the second citation and sentenced Mongielo to 10 days behind bars for violating the conditional discharge.
The next day, Housh got Murphy to impose a four-month stay of the sentence pending appeal, but Housh made three errors after that: he didn’t file a notice of appeal with the court clerk, instead sending it to the town clerk; he didn’t file two copies, as required by law; and he didn’t serve the notice of appeal on Marble.
Appellate courts have ruled any of those mistakes is reason for throwing out an appeal, but Murphy chose not to do so.