Mongielo will not go to jail for sign violation, Murphy rules - The Buffalo News

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Mongielo will not go to jail for sign violation, Murphy rules

LOCKPORT – David J. Mongielo’s five-year battle with the Town of Lockport over its sign ordinance ended Friday, as Niagara County Judge Matthew J. Murphy III canceled a 10-day jail sentence a town justice had imposed.

Mongielo’s $750 fine, imposed four years ago, still stands. And so does the town law that bars the use of signs that change “format” more than once every 10 minutes.

Mongielo has a LED signboard in front of his Robinson Road auto repair and tire shop, which is where the violations occurred.

Murphy, who wrote in a 13-page decision that Mongielo has been involved in a “Kafkaesque ordeal” since May 2009, concluded that Mongielo was trying to oppose the sign ordinance rather than defy Town Court when he committed his second violation in 2011. That constituted a violation of the one-year conditional discharge he received on his original 2009 violation.

The 10-day jail sentence was imposed Jan. 21 by Town Justice Leonard G. Tilney Jr. He took over the case after Dec. 31, when Justice Raymond E. Schilling, who had handled it from the start, left office.

Murphy rejected defense attorney Frank T. Housh’s contention that Tilney, and Schilling before him, should have recused themselves. The main witness for the sign violations was Donald J. Jablonski, chairman of the town Zoning Board and the town Republican Committee, and the justices were Republicans who received the town party’s endorsement.

Mongielo, a Republican at the time, has twice run unsuccessfully for supervisor against GOP incumbent Supervisor Marc R. Smith and had numerous battles with the GOP establishment.

“We still believe this was a political prosecution and we still believe the Town of Lockport violated the law,” Housh said. “That said, Judge Murphy avoided the absurd result that one of Lockport’s finest citizens and members of the business community would go to jail for trying to raise money for a sheriff’s deputy injured in the line of duty.”

“I just wish there was more justice in the Town of Lockport,” Mongielo said. “I really wish there had been a jury trial.”

Tilney, the town justice, imposed the jail sentence on the violation of the conditional discharge as he simultaneously dismissed the second sign violation charge.

Tilney said there was no point in trying Mongielo again on the same evidence, especially since he didn’t intend to increase the jail time.

Mongielo appealed not only the jail sentence but the dismissal of the second charge, because he wanted a jury trial. However, Murphy said the dismissal did Mongielo no harm and the defendant is not able to, in effect, compel the town to prosecute him.

But Murphy found the jail sentence “harsh and excessive” and canceled it “in the interest of justice.”

The three original violations of the flashing sign law occurred in 2009. Schilling convicted Mongielo in a nonjury trial whose verdict was announced Aug. 24, 2010.

He imposed the $750 fine and the one-year conditional discharge Sept. 14, 2010.

The dates are important, because on Aug. 25, 2010, Mongielo used his flashing sign to advertise a fundraising event for a Niagara County sheriff’s deputy who lost both legs in a car crash. That was a year and a day after the conviction, and Murphy concluded that Mongielo thought the conditional discharge had expired.

But by law, the clock didn’t start running until the sentencing date, so the one-year order to avoid sign violations was still in force, and Mongielo was charged again. Murphy said Mongielo’s “petulant” action “compounded his troubles.”

“Nevertheless, what this case involves at its very heart are one or two violations of a town sign regulation. To suggest, as the prosecution does, that the jail sentence should be upheld because the defendant’s conduct constituted an affront to the majesty of the justice system simply begs the question and strains common sense,” Murphy wrote.

Murphy also wrote that his ruling “is not meant to express any opinion on future violations of the sign ordinance by the defendant.”

When a reporter asked Mongielo if he was planning to turn the flashing sign back on, Housh cut him off before he could answer.


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