Businessman fights to stay out of jail

LOCKPORT, N.Y. (WIVB) - A Lockport businessman is fighting to stay out of jail for violating the town's ordinance on electronic signs.

The sign that crossed the line was advertising a fundraiser for a sheriff's deputies, who had lost both legs in the line of duty. And now, there's been a new development in the case. David Mongielo is appealing two of his convictions, and could get a new trial for one of them. But he believes the law itself should be thrown out.

Mongielo's attorney contends his client faces a punishment that has never been used in New York State courts: a 15-day jail sentence for violating a sign ordinance, an ordinance the Lockport businessman insists is unconstitutional.

"We got a permit to put the sign up, as long as we abided by the law, which we always did abide by the law - that was my argument. But they are saying I violated the law, and really, all I am looking for is a fair trial," Mongielo.

Mongielo has been convicted of violating the Town of Lockport's sign ordiance twice. The law restricts sign changes to no more than once every 10 minutes.

After the second conviction, a town judge issued a stay of the 15-day sentence pending appeal. That appeal was argued before State Supreme Court Justice Matthew Murphy on Friday.

Lockport prosecuting attorney Bradley Marble said, "In this situation, he was given a clear directive, he knew what the directive was. That directive was not to violate the sign ordinance for a year, and he would not to serve 15 days in jail, and he violated that court order."

The final straw for town officials was Mongielo's posting a fundraising event for Allen Gerhardt, a Niagara County Sheriff's deputy who lost both legs in a traffic accident in the line of duty.

During arguments, both prosecution and defense agreed Mongielo should get a new trial based on procedural omissions surrounding his second conviction, but his attorney believes all of his convictions, and jail sentence, should be overturned.

Mongielo's lawyer Frank Housh argued, "But the record is also abundantly clear that the first trial has to be struck as well, and I am confident in our case, I am confident that the judge will find both trials, and that this entire legal proceeding has to be reversed."

Justice Murphy took Friday's arguments under advisement and has a number of options, including a new trial while upholding the other verdicts, throw out all the verdicts without ruling on the town ordinance, or he could rule the ordinance itself is unenforceable.