Town clerk says Mongielo appeal error wasn’t “malicious” - The Buffalo News

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Town clerk says Mongielo appeal error wasn’t “malicious”

LOCKPORT – Town Clerk Nancy A. Brooks said last week that the failure to take an appeal notice for David J. Mongielo’s sign ordinance conviction to Town Court was not intentional.

“I certainly didn’t do anything maliciously,” Brooks said in an interview. “I have no reason to.”

The statement came as Niagara County Judge Matthew J. Murphy III granted a one-week delay in arguments over whether the combination of mistakes by Brooks and defense attorney Frank T. Housh is fatal to Mongielo’s hopes of appealing a 10-day jail sentence for violating his conditional discharge on a sign ordinance violation.

In a March 7 court appearance, Murphy said he was inclined to lift the stay he had placed on the sentence Jan. 22, pending an appeal. He said past appellate court decisions left him with little leeway on declaring erroneous appeal paperwork invalid.

However, he directed Town Prosecutor Bradley D. Marble to investigate how and why Housh’s appeal notice for Mongielo failed to reach Town Court.

Housh said he sought the postponement of his next appearance before Murphy because he received affidavits from Marble only Thursday that the latter gathered from Brooks and the town’s two court clerks.

One of the first steps in filing an appeal is to give notice to the original court within 30 days. In this case, the clock started running Jan. 21, when Town Justice Leonard G. Tilney Jr. imposed the 10-day jail term on Mongielo for violating the town’s law against flashing signs.

Mongielo, who owns an auto repair shop on Robinson Road, has an LED signboard in front of his business. It ran afoul of the town’s law banning signs that change “format” more than once every 10 minutes.

He was convicted of that in a nonjury trial in 2010 and received a fine and a one-year conditional discharge from then-Justice Raymond E. Schilling. But before the year was up, Mongielo was cited for violating the ordinance again.

Although Tilney dismissed that charge, scrapping a planned jury trial, he imposed the sentence because Schilling already had found Mongielo guilty of violating the discharge in a hearing that didn’t require a jury.

After Murphy stayed the jail term, Housh mailed an appeal notice to the town. He didn’t send it to the court clerk, but rather to Brooks, who was referred in the letter as “clerk of court.” That’s not a job she has.

“I didn’t really notice it was for court,” Brooks said in an interview. “It had my name on it. I signed it and sent [a copy] back. Generally, when it’s for my name and address, I thought it was for me. I thought it was just something to be filed here. … There are so many things that are filed duplicately.”

If Murphy throws out the appeal and lifts the stay on the sentence, Mongielo could go to jail Friday. The attorneys expected that no further appeal would be allowed because the 30-day clock has run out.


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