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A defense lawyer and prosecutor argued Wednesday night in Tonawanda Town Court over whether the town’s garbage-picking law is too vague.

Justice Daniel T. Cavarello reserved decision on the case, which arose after Buffalo garbage picker Don DalFonso was charged Oct. 1 with illegally taking garbage on a town street.

Attorney John C. Nelson contended that the town ordinance under which DalFonso, 67, is being prosecuted is unclear and that the police summons and complaint served on his client is legally deficient.

Nelson said the complaint lacks a legally required claim that the material DalFonso picked up on McConkey Drive had been placed “out for collection.”

While Nelson argued that a strict reading of the town ordinance was mandatory, prosecutor Mario A. Giacobbe called the complaint, which accused DalFonso of “interference with waste material,” legally sufficient.

Cavarello ordered both sides back before him Dec. 19 for his decision.

DalFonso earlier this year told The Buffalo News he considers the Tonawanda ordinance “a joke,” adding that if the homeowners and businesses put recyclables out on the curb, “they don’t care who gets it.”

DalFonso, who is free without bail, is trying to catalog similar prosecutions in the town and what was done, if anything, to other scrap collectors under the ordinance, Nelson said after court.

DalFonso, who identifies himself as a professional “scrapper,” came to court for the early evening proceeding but was unavailable to comment afterward. Previously he has admitted being a repeat offender under the Tonawanda garbage ordinance. He maintains that he is being singled out for prosecution even though he says there are more than a half-dozen other regular scrap collectors operating in the town.

Town police and court records show that since January 2004, officers have issued 49 appearance tickets for violating the ordinance to DalFonso and others, including seven so far this year.

The penalties have ranged from an initial written warning to obey the ordinance, to a $50 fine for a second violation in a 12-month period, with the fines increasing at the judge’s discretion for continuing violations.

email: mgryta@buffnews.com