Daniel Delaney Jr., 36, has sought an injunction in state court to block his forfeiture of the 2-year-old dog, Gotti, to the SPCA Serving Erie County.
For now, that will keep the SPCA from finding the unlicensed dog a new home.
“Now there’s a stay so we will have to wait for the courts to make a determination,” said Barbara Carr, executive director of the SPCA.
“The dog is under medical care, and not ready to go anyplace yet,” Carr said. “When he is, we’ll probably utilize a foster care situation until the court situation is finished.”
The organization has cared for Gotti since Oct. 6, when police officers arrested Delaney on a charge of aggravated animal cruelty, a felony.
Delaney told investigating police officers he forgot the dog was leashed to the back of his vehicle parked outside a store where he had gone to make a few purchases. After leaving the store, he drove away in the Hampshire Street neighborhood, authorities said.
The pit bull suffered leg injuries and lost the pads on his paws as a result of the incident.
Delaney has been in the Erie County Holding Center since his arrest, unable to post $25,000 bail.
A lawyer for the SPCA went to the jail a couple of weeks ago to notify Delaney that he had to claim the unlicensed dog within a certain time period or he would forfeit ownership.
Since he cannot post bail, Delaney has been unable to go to the SPCA to claim the dog, said Sarah E. Ryan, his legal aid lawyer.
But Delaney does not want to lose ownership, she said. “He wants to be able to have his due process.”
The Legal Aid Bureau is also defending Delaney in the criminal case. His case is expected to be presented to a grand jury.
The civil matter is before State Supreme Court Justice Patrick H. NeMoyer. A date has not been set yet for the judge to hear arguments on Delaney’s motion, a law clerk for NeMoyer said Friday.
But Ryan said she expects the case to be called next week.
Delaney will face another hurdle in keeping Gotti when the SPCA asks the judge to have him secure a bond to cover the SPCA’s cost of caring for the dog.
“We’ll be petitioning the court for a bond for the care of the animal,” Carr said. “Instead of the SPCA being responsible, the fellow who has been arrested will be responsible for his medical care.”
The projected cost of Gotti’s care – since the dog’s arrival at the SPCA and for the next month or so – is more than $1,200, Carr said.
“If he doesn’t come up with money to post the bond, the judge can then [say] he has relinquished ownership,” Carr said.
That raises the question: If Delaney is relying on a public defender for his legal defense, and he does not have enough money to post bail, how will he be able to pay for the dog’s medical care and other costs at the SPCA that might run into the thousands of dollars?
“I think he’s always said he wants the dog back,” Carr said.
However, the SPCA does not want to give the dog back to him, SPCA officials say.
“It would be completely irresponsible for us to return the dog under these circumstances,” said Gina Browning, director of public relations for the local SPCA. “The last thing the SPCA is going to do right now is return a dog to a man who is facing an aggravated animal cruelty charge.”
Carr said, “It’s always up to the courts to decide.”
Ryan, his defense lawyer, would not confirm Delaney wants the dog returned to him.
“At this point, we were just stopping an automatic forfeiture,” she said of the civil court action.
Gotti is doing well, Carr said.
“We have great people taking care of him,” she said.
(Buffalo News - Nov 2, 2012)
