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A Town of Tonawanda judge has yet to decide on the legal sufficiency of the town scrapping ordinance, which has been challenged by a 67-year-old Buffalo man cited with violating the ordinance earlier this fall.

Don DalFonso appeared in Town Court on Wednesday night with defense attorney John C. Nelson, who challenged the legal sufficiency of the charge lodged against DalFonso Oct. 1.

Nelson met privately with Town Justice Daniel T. Cavarello and prosecutor Mario A. Giacobbe, and the judge told the two he has yet to decide on Nelson’s legal challenge. If Cavarello rules against it, he said, he will schedule a bench trial DalFonso.

Afterward, Nelson told The Buffalo News DalFonso is not entitled to a jury trial in the case because he is only accused of a town violation.

During the closed-door session Nelson pressed his contention that the town ordinance against illegally taking garbage that had been placed “out for collection” on a town street is legally vague, and the town lacks proof that the material DalFonso picked up on McConkey Drive several weeks had been placed “out for collection.” Giacobbe reiterated the complaint accusing DalFonso of “interference with waste material” was legally sufficient.