People v Mongielo

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[*1] People v Mongielo 2013 NY Slip Op 51841(U) Decided on November 12, 2013 Lockport Town Ct Schilling, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 12, 2013
Lockport Town Ct

People of the State of New York, Plaintiff,

against

David Mongielo, Defendant.



11090178



BRADLEY D. MARBLE, LOCKPORT TOWN PROSECUTOR,

FOR THE PEOPLE

FRANK HOUSH

ATTORNEY FOR THE DEFENDANT

Raymond E. Schilling, J.



The Defendant, David Mongielo (Mongielo) through his attorney brings on a Motion for Change of Venue and requests a hearing on an issue of Selective Prosecution. The People oppose the relief sought claiming the motion is untimely, no prejudice of the jury pool has been shown, and the claim of Selected Prosecution is based on conjecture, speculation and misstatement of facts. For reasons stated in this Decision both the Motion for the Change of Venue and the request for a hearing on the issue of Selective Prosecution are denied.

The defendant's motion contains several procedural errors, such as misnaming the proper defendant, having two Schedule "A's", one of which had no attachment as to prior accusatory instruments as well as a misunderstanding of the three separate proceedings held before this court, to wit: the initial failure of defendant to obey the [*2]Lockport Town ordinance for which he was found guilty after trial under Docket No. 09050162; a further hearing under that docket wherein it was determined that the defendant had violated a conditional discharge granted him by this court; and this docket alleging a new and distinct violation of the Lockport Town sign ordinance. Counsel for the defendant indicates in his affidavit that on July 28, 2013, he requested recusal of the court, as well as a change of venue during oral argument. In as much as the request for recusal of the court has not been pursued under the instant written motion, it is waived. If the court were to reach this issue, it would deny the same because absent the legal disqualification of the Judiciary Law §14 or discretionary disqualification under Court Rules 22 NYCRR 100.3, the court is the sole arbitrator of recusal. See People v. Moreno, 70 NY2d 403 (1987). Here there is no legal or discretionary disqualification, nor has any been alleged by defendant in his oral argument or moving papers. This Court can be fair and impartial in these proceedings especially since a petit jury will be the trier of fact.

CHANGE OF VENUE

CPL §170.15 Removal of action from one local criminal court to another

"Under circumstances prescribed in this section, a criminal action based upon information, simplified information, a prosecutor's information or a misdemeanor complaint may be removed from one local criminal court to another:

1.

2.

3. At any time within the period provided by section 255.20, where a defendant is arraigned upon an information, a simplified information, a prosecutor's information or a misdemeanor complaint pending in a city court, town court or a village court having trial jurisdiction thereof, a judge of the county court of the county in which such city court, town court or village court is located may, upon motion of the defendant or the people, order that the action be transferred for disposition from the court in which the matter is pending to another designated local criminal court of the county, upon the ground that disposition thereof within a reasonable time in the court from which removal is sought is unlikely owing to:

(a)

(b) Inability of such court to form a jury in a case, in which the defendant is entitled to and has requested a jury trial.

4. "

(Emphasis Added)

This Town Justice Court, although pre-Constitutional in its origins, is strictly limited in its authority to that which has been given it by the New York State Legislature [*3]under Section 170 of the Criminal Procedure Law. See generally People v Douglass 60 NY2d 194 (1983). The defendant is correct that there is no statutory language under §170.15(3)(b) of the Criminal Procedure Law which allows this court to grant a change of venue for those requested [People v. Roberts 95 Misc 2d 41 (1978)]. Even though §170.15(3)(b) had been interpreted by Appellate County Courts to allow a change of venue, the Section itself requires a motion should be made within the time limits prescribed under §255.20 of the Criminal Procedure Law, to wit: within 45 days or within such additional time as the court may fix upon application of the defendant. The court, in this matter, set October 15, 2013, as a filing date for all motions by the defendant. This date is far beyond statutory time limits but has been extended due to Counsel's late appearance for the defendant who previously was Pro Se. In any event, even if this court was to find cause for a change of venue under §170.15(3)(b), it is without any authority to transfer the matter. The defendant has brought on a motion that this court cannot decide as it does not have the statutory authority under the Criminal Procedure Law. A change of venue motion must be made to a Niagara County Court Judge, after this Court was unable to form a jury, who then could transfer this case to another local criminal court. Accordingly, the defendant's motion is premature and in the wrong forum. This Court is limited to the language of CPL S 170.15 (3)(b). The issue of whether or not a fair trial can be had in the original local Criminal Court based on such circumstances as community prejudice or extensive publicity is outside the statutory language. Even then there is a split of opinion as to whether the language of the statute is sufficiently broad to include those is concepts. Compare People v. Mundhenk 141 Misc 2d 795 (1988); People v. Roberts 95 Misc 2d 41 (1978) with Application of Capuano 68 Misc 2d 481 (1971). If this Court could reach the issue it would deny it because the moving papers do not allege the standard of proof necessary to sustain a transfer, [People v Cahill 2 NY3d 14 at 24 (2003) and People v Culhane 33 NY2d 90 at 111 (1973)] and because of the defendant's own actions to involve the Fourth Estate into this case.

SELECTIVE PROSECUTION

Finally, defendant requests a hearing on Selective Prosecution. While defense counsel assumes that there is a history in the Town of Lockport that "one and only one person has been so vigorously prosecuted for a sign ordinance", he states no historical fact, circumstances or statistics to support the claim. Likewise, he asserts it is the defendant's position that "there is an unequal hand or evil eye present in this matter", somehow equating the witnesses against the defendant as political rivals and that "there is evidence that the charges themselves are brought on as political retribution." Yet, again, he sites no evidence by affidavit or otherwise. The court should not entertain such allegations without independent verification of the same. Accordingly, the court must deny a hearing on selective prosecution, because the defendant has not preliminarily meant his heavy burden [People v. Blount, 90 NY2d 998 (1997)] to prove a basis in fact that the prosecution in this matter was deliberately based upon an impermissible standard. See generally People v. Welsh, 2 AD3d 1354 (4th Dept — [*4]2003).

Dated: November 12, 2013___________________________Hon. Raymond E. Schilling, Lockport Town Justice