By Jessica Bagley
Niagara Gazette — TOWN OF TONAWANDA — A Buffalo man accused of taking items from garbage in the town illegally is set to be in court for a bench trial in early February.
Don Dalfonso’s attorney, John Nelson, said his request to dismiss the case was denied by Judge Daniel Cavarello last week, resulting in the case moving to trial.
Nelson argued the charges against Dalfonso, 67, weren't legally sufficient when Nelson and the Town Prosecutor Mario A. Giacobbe argued over whether the ordinance is clear enough in a court appearance in November.
"The paperwork has to allege all the facts that would prove he was guilty of the charge," Nelson, of Trbovich Law Firm, based in Williamsville, said. "We argued the paper work he was charged with didn't have all the necessary facts. The judge disagreed with us."
Cavarello was scheduled to make his decision Dec. 19, but delayed it until last week.
The court appearances came after Dalfonso was issued tickets for violating a town ordinance prohibiting garbage picking in October of 2012 on McConkey Drive. He also violated the ordinance in November of 2009, according to police.
Although unknown to many residents, garbage picking is illegal in the town, and many other nearby areas, including as the City of Buffalo and Amherst.
The town's ordinance against the practice reads: "It shall be unlawful for any person not authorized to do so to remove the lid from any tote or to collect, molest or scatter any waste material, garbage, nonrecyclable rubbish and refuse and/or recyclable material set out for collection."
And although he admits to violating the ordinance, he believes he the town is discriminating against him.
"They are making a big deal about this ordinance because they don't want me doing it," he said.
Dalfonso calls himself a "professional scrapper," as has been collecting metal items from residents' curbs for 20 years and makes a living off of the practice.
"He just feels like this is unfair," Nelson said. "This is how he makes his livelihood. He wants to be heard."
Dalfonso said there are a handful of other regular garbage pickers who visit the town, but said they aren't being issued tickets like he is.
"Other people aren't being singled out like I am," Dalfonso said.
But Lt. Nick Bado said 49 tickets have been issued for violating the ordinance since 2004, so it isn't exactly a rare occurrence.
Bado said the officer on duty has the discretion as to whether to issue a warning or a ticket, and that there isn't one exact policy for him or her to follow.
"An officer can give a warning if he wants," Bado said. "Each of these situations is unique in and of itself, and each case has its own individual circumstances."
The bench trial is scheduled for Feb. 6.
Dalfonso is not entitled to a jury trial, as he is only accused of violating an ordinance, not a criminal law.
Penalties in the town, as well as other cities, have included fines of $50 or more.