The Defendant, David Mongielo (Mongielo) has filed several pro se documents with the Court seeking various forms of relief, to which the People have responded.

The first inquiry and decision which the Court must make is whether or not Mongielo has waived his constitutional right to counsel. There is the inherent conflict between the Defendant's right to counsel and the right of self-representation. The constitutional right to counsel is fundamental in our system of justice (See US Const. 6th Amendment; NY Const, Art. I, §6). Yet the Defendant has the same constitutional right to self representation (People v. McIntyre, 36 NY2d 10 and Adams v. United States ex. rel McCann 317 US 269.). Therefore, the Court does have a duty to make sure the Defendant's waiver of such a fundamental right to counsel is unequivocal, voluntary and intelligent. Accordingly, this constitutional trilogy of language, that is, a knowingly, voluntary and intelligent "waiver" of the right to counsel must be made by the Defendant before proceeding pro se (People v. Slaughter, 78 NY2d 485; People v. Vivenzio, 62 NY2d 775). The Federal Courts have mandated a duty on the Court to conduct a "searching inquiry" (Faretta v. California, 422 U.S. 806) to make sure the waiver meets the constitutional requirements. Thus, the Court has an affirmative duty to make the Defendant "aware of the dangers and disadvantages of self representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open" (Faretta, 422 U.S. at 835). Our own [*2]Court of Appeals in People v. Smith, 92 NY2d 516 requires that the record should "affirmatively disclose that a Trial Court has delved into the Defendant's age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver." Although the Court of Appeals has eschewed application of any ridged formula or litany (People v. Providence, 2 NY3d 579), it does require the Court to explore the issue of warning the Defendant of the risk inherent in proceeding pro se, and apprising a Defendant of the singular importance of the lawyer in the adversarial system of adjudication. (People v. Arroyo, 98 NY2d 101). This Court on several occasions has attempted to conduct a Searching Inquiry requesting the Defendant to affirmatively disclose the relevant factors cited above. Mongielo wishes not to respond to the Court's inquiries citing some mythical constitutional right and/or using some type of weird gamesmanship meant to frustrate Court proceedings. This Court finds that it has complied with the case law in this matter, has conducted a Searching Inquiry, finds that Mongielo understands and is competent to waive his right to counsel and has made a knowingly, voluntarily, and intelligent waiver of that right. The Court will now allow Mongielo to proceed pro se.

The various documents filed by Mongielo, although entitled Motion to Quash, are really quasi Motions to Dismiss which must be governed by §170.30 of the Criminal Procedure Law (CPL). That section limits this Court's power to dismiss to seven grounds, to wit: is the pleading defective, CPL §170.35; is the Defendant receiving immunity from prosecution, CPL §50.20 or CPL §190.40; is the prosecution barred by reason of a previous prosecution, CPL §40.20; is the prosecution untimely, CPL §30.10; has the Defendant been denied his right to a speedy trial; does there exist some jurisdictional or other impediment to convict the Defendant of the offense charge; or is a dismissal required in the furtherance of justice, CPL §170.40. See People v. Douglass, 60 NY2d 194. Thus the Court must determine if Mongielo's Motion to Quash fits into its statutory authority to dismiss.

Mongielo has filed six (6) documents as indicated above. The first is a Motion to Quash based on the lack of authority of in personam jurisdiction. The term "Quash" is usually used to declare invalid or void some type of discovery motion or subpoena but can be accepted by the Court to be used to dismiss if there was a defect in the pleadings so that no judgment could be made. This initial document received by the Court November 16, 2012, which is an unsigned document, requests dismissal based on no jurisdiction of this Court and that the Town Board does not have the authority to legislate its own ordinance. The second document, a Revised Motion to Quash received November 30, 2012 is asking the Court to prove on the record all jurisdictional facts related to its jurisdiction claiming that an Appearance Ticket does not confer personal jurisdiction upon a Criminal Court. It specifically requests dismissal and is signed by Mongielo. The third document is a "Judicial Cognizance" and is in the nature of the Memorandum of Law rather than a request for relief of this Court. It is unsigned and received by the Court December 26, 2012. It covers such subjects as immunity, sovereignty, the New York State Constitution, and cites from the New York Code of Criminal Procedure which is no longer in effect, having been superseded by the Criminal Procedure Law. Mongielo then filed an Amend (sic) Motion to Quash with the Court also on December 26, 2012 which incorporates the above Memorandum of Law, again, claiming the Court must prove its jurisdiction, that an Appearance Ticket does not confer personal jurisdiction, and the Town Board cannot legislate [*3]ordinances. It is signed by the Defendant. Mongielo then filed a Verified Memorandum of Law on January 22, 2013 alleging that only Congress can make an act a crime and that the "Magistrate" does not lawfully exist, again alleging jurisdictional defects and claiming statutes are not laws and that somehow this Court is engaged in acts of treason. The sixth and final document received by this Court on February 26, 2013 from Mongielo is an answer to the Peoples' Answer which the Court will interpret as a Reply in which Mongielo claims that the Town Prosecutor is not an attorney; is somehow deceiving this Court regarding its jurisdiction; and somehow this Court is in violation of Federal Statutes cited.

The Court has received one document from the People filed February 5, 2013 in Answer to the initial documents filed by Mongielo. The People have traced the jurisdiction of the Court from early times through the present Criminal Procedure Law and New York State Constitution.

This Court does not have to "prove" its authority or jurisdiction. As Mongielo concedes on Page 8 of his December 26, 2012 Memorandum of Law filing, the Legislature of the State of New York can create courts of record or not of record under the New York State Constitution, Article VI. The New York State Legislature can create statutes which are laws granting or distinguishing the Courts it has created under Constitutional authority with Legislative jurisdiction. This Court will not joust with Mongielo as to whether it has been created correctly but simply state it is part of the Unified Court System created under Article VI, Section (1)(A) of the State Constitution and the Uniform Justice Court Act §102 which specifically include Town Courts. The trial jurisdiction of the Lockport Town Court is territorial, that is, if a violation or crime occurs within the geographical area of the Town of Lockport, the Court has the authority to judicate. (See UJCA §2000 and CPL §20.50). The allegation here is that Mongielo improperly operated a sign at his business location of 6115 Robinson Road in the Town of Lockport, New York. It has been held that Town Courts have preliminary jurisdiction over all crimes including felonies and trial jurisdiction, over misdemeanors and violations (CPL §10.30 and §100.05; See generally People vs. Davey, 37 Misc 3d 190).

The Town of Lockport is a subdivision of New York State and was created by the New York State Legislature on February 2, 1824 under Chapter XXVII of Laws of 1824. As such, the Town Board was created and given executive, legislative, and judicial authority. Through various amendments, the Town Court and its two Justices have been separated from the Town Board to give the Court independence and eliminate the conflicts which Mongiello has complained of in oral arguments before the Court [See People v Kohl 17 Misc 2d 320 App Term Niagara County Court (1959)]. But the Town's Supervisor and Board still maintain their executive and legislative powers. The Town Board has the authority to create local ordinances to govern the citizens of the Town of Lockport. This Court agrees with Mongielo that a simple ticket to appear does not invoke our authority to adjudicate. However, a long form pleading does give this Court the authority to adjudicate and the personal appearance of Mongielo before this Court bestows to the Court personal jurisdiction over the Defendant. Thus, this Court finds it has in personam jurisdiction over Mongielo to adjudicate duly establish Town Ordinances. It therefor denies Mongielo's request to dismiss the charge of violating a sign ordinance.

Dated: March 19, 2013___________________________Hon. Raymond E. Schilling, Lockport Town Justice