NEWBURYPORT – An animal cruelty charge against a Haverhill man accused of leaving his small dog inside a freezing car while he ate at a Salisbury restaurant was dropped Wednesday after an Essex County prosecutor told a judge she wouldn't likely win the case.
Peter Talas, 73, of 8th St. was arraigned at Newburyport District Court in March on an animal cruelty charge. If convicted of the felony charge, Talas could have been sentenced to up to seven years in state prison.
In court on Wednesday, Essex County prosecutor Lynsey Legier told Judge Peter Doyle that based on what was written in a Salisbury police report, she wouldn't be able to successfully prosecute the animal cruelty charge.
Doyle quickly dismissed the case.
Legier, who works out of Lynn District Court, has prosecuted several high-profile animal cruelty cases during her eight years in the Essex County District Attorney's Office.
Her admission came as the result of a motion filed by Talas' attorney, Stephen Colella, that argued her office didn't have enough evidence to establish probable cause.
"The evidence submitted by the complainant in support of his application for complaint was insufficient to establish probable cause when viewed in its entirety," Colella's motion reads.
His argument was based on what is commonly called a DiBennadetto motion — a reference to a 2002 state case involving John DiBennadetto, who was accused of knocking his former tenant unconscious. A clerk magistrate determined there was enough probable cause to charge him with assault and battery but he successfully appealed the ruling based on the police handling of the case.
Outside the courtroom, Colella said his client was pleased with Doyle's ruling.
"Absolutely," Colella said.
According to Salisbury police, it was about 19 degrees on Feb. 26 when an officer approached Talas inside Family Restaurant and told him he needed to warm up his car.
Minutes earlier, police had responded to a tip from a passerby that there was a small dog jumping around inside a parked car. The dog was barking incessantly and appeared agitated. Sgt. Timothy Hunter could see its breath as it barked. Hunter estimated the 5- to- 10-pound dog had been in the car for about 45 minutes before police arrived.
In his motion, Colella challenged Hunter's assertion that the dog was in danger.
"Officer Hunter, unless he can talk to animals, has no idea what motivated the dog's activity," the appeal reads. "Officer Hunter has no rational basis to conclude that the dog was not protecting his environment from the approach of a stranger."
While Hunter stayed with the dog, Officer James LaConte went to look for the dog's owner inside the restaurant. A couple of minutes later, Talas came out and immediately declared the dog was fine. But Hunter said the dog was in danger, according to his report.
In his report, Hunter wrote that Talas "then exclaimed back, 'Are we done here?!' and opened the front door to the restaurant to walk back inside. I told him we were not and that he could go to jail for this."
Hunter ordered Talas to go back inside, pay his bill and then warm up his car.
Hunter received a copy of Talas' restaurant receipt and the time stamp showed he had been served at 6:11 p.m., 37 minutes before police officers first responded to the call.