Niagara Gazette — LOCKPORT — David J. Mongielo did not have an opportunity for a jury trial when he was in court facing a charge of violating the Town of Lockport’s electronic sign ordinance a second time, the town prosecutor admitted Friday in Niagara County Court.

The auto repair shop owner was in court appealing his conviction and 15-day jail sentence before Niagara County Judge Matthew J. Murphy III. Mongielo’s appeal was based on questions about the lack of a jury trial, the constitutionality of the sign law, the conviction and the resulting sentence. Murphy will issue a decision sometime in the next couple of weeks.

Both Frank Housh, Mongielo’s attorney, and Bradley Marble, the Lockport town prosecutor, agreed Mongielo was not given a chance to exercise his right to a jury trial. That could lead to a new trial.

“We are conceding the right of a jury trial was not afforded,” Marble said in court.

“All I was asking for is a fair trial,” Mongielo said afterward.

Mongielo was sentenced and fined April 17 in Lockport Town Court by Justice Raymond E. Schilling, after being found guilty by Schilling in March and a nonjury trial in December. The jail sentence was the result of the violation coming within the one-year conditional discharge Mongielo received on Sept. 14, 2010 for his first violation of the sign ordinance. He was fined $750 at that time, $250 for each count of violating the ordinance.

The condition for the discharge was that Mongielo could not break the sign law again. Nearly a year after the first conviction, Mongielo’s sign was videotaped by Donald Jablonski, the town zoning board chairman. On Aug. 25, 2011, the sign advertised a fundraiser for an injured Niagara County Sheriff’s deputy during which the image changed every few seconds, according to the nine minute video shot by Jablonski.

The sign law says any sign which is capable of changing the format or message may not change more than once every 10 minutes.

But what does the word format mean, asked Housh. It’s not spelled out in the law, leaving the defination open to interpretation, he said. Marble disagreed, adding that it wasn’t format but rather message was the key word in the law.

Housh argued that Mongielo was not given proper written notice of the second violation. Marble disagreed, saying Mongielo received written notice of the conditional discharge, for which the second conviction violated.

“In this situation, he was given a clear directive, he knew what the directive was,” Marble countered. “That directive was not to violate the sign ordinance for a year and he would not have to serve 15 days in jail. And he violated that court order.”

Housh said the convictions should be overturned, because the court did not find Mongielo without a reasonable doubt. He added that while looking for a precedent, he was unable to find one. Housh cited court documents from both convictions where Schilling based his verdict on “sufficient credible testimony,” from town Building Inspector Brian Belson. Housh called the testimony, “arbitrary and comical.”

The appeal also mentioned the consolidation of charges against Mongielo and his business, Mongielo’s Auto Specialities. Originally, on paper, the sign law violations were against both, but then as the case went forward, just Mongielo was listed on documents. There was a court document allowing for the consolidation, which Murphy asked to see. A copy was not included in the file for Friday’s hearing.

If a new trial does happen, Housh said he would try for a change of venue. Schilling ignored the legal process, Housh said.

“There’s still the appearance of impropriety,” he said.

Murphy extended the stay on Mongielo’s sentence, which would have begun Monday. The stay was originally granted in May.