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Getting Barry Moss fatal hit-run case to new grand jury faces tough legal hurdle

Aided by FBI agents, State Police and two Erie County prosecutors, Evans police are taking a close second look at the unsolved hit-and-run death of Barry T. Moss in 2013.

But getting an indictment will not be easy, legal experts say, because of how the Erie County District Attorney’s Office handled the case in the past.

“You’ve already had one grand jury no bill this case. From a legal standpoint, it is a very high hurdle to convince a judge to allow prosecutors to put the case before a new grand jury,” said Salvatore M. Martoche, a retired judge from the Appellate Division of State Supreme Court.

“I think any judge would be quite hesitant to allow the DA to resubmit this case to a new grand jury, unless law enforcement comes up with some brand new evidence that could not have been uncovered before,” said Vincent M. Bonventre, a lawyer and legal ethics expert who teaches at the University of Albany Law School.

For more than two months, Evans Police and the DA’s Office have been reinvestigating the death of Moss, a 52-year-old father and grandfather who was struck and fatally injured by a motor vehicle on Route 5 on the morning of Dec. 22, 2013.

In public statements and on reports, Evans police have identified Gabriele Ballowe as the prime suspect of their investigation, saying they have evidence that the Evans businesswoman was driving the sport utility vehicle that struck Moss. That evidence included Moss’ DNA on the sport utility vehicle that Ballowe drove the morning of the accident. They also said fragments of Ballowe’s vehicle were found near Moss’ body.

When evidence went to a grand jury in May 2014 and the grand jury voted to indict, the district attorney at the time, Frank Sedita, sent an aide to ask the jurors take a second vote and not indict, because he did not believe there was enough evidence to convict.

In January of this year, Michael J. Flaherty Jr. became acting district attorney, and he assigned a top aide to work with Evans police to resurrect the Moss investigation, according to law enforcement officials.

If investigators are successful in obtaining significant new evidence, court officials say, they can ask a judge to allow them to present the information to a new grand jury.

But four legal experts – Martoche, Bonventre, former Erie County DA Frank J. Clark and former State Attorney General Dennis C. Vacco – said it will be difficult under New York State law to persuade a judge to allow the case to be presented to a new grand jury.

“It will not be impossible, but it will be difficult,” said Vacco, a Buffalo attorney who formerly headed the grand jury bureau in the Erie County DA’s Office. “The past tactical blunders in this case have made any future prosecution effort enormously difficult.”

All four legal experts said Sedita, the former prosecutor who is now a State Supreme Court judge, made a mistake when he had the case presented to a grand jury, and then asked the grand jurors to take a second vote.

“Because of the actions they took at that time, they have set a really high bar for themselves,” Clark said of the prosecutors. “They will have to make a really strong, really compelling case to convince a judge that they have important new evidence that is worthy of presentation to a new grand jury.”

Vacco recalled a case he prosecuted involving the murder of a Kenmore woman in 1980. The woman’s body was found in the bathtub of a Town of Tonawanda man named Timothy Collins. Collins told police he did not know the woman and had no idea how her body got into his tub. A grand jury examined the evidence and decided not to indict Collins, Vacco said.

“Six years later, we found some new and significant evidence – that Collins had sent a letter to the victim’s sister, saying he was sorry that the victim had died. He drew three religious crosses on the letter,” Vacco said. “Three crosses had been carved into the victim’s chest, and that information had never been released to the public. We argued to a judge that only the killer could know that, and a judge allowed us to present the case to another grand jury.”

Collins was indicted, put on trial and convicted of manslaughter, according to state records on the case.

The unsolved Barry Moss case has been mentioned by Mark A. Sacha and John J. Flynn Jr., two candidates battling Flaherty to become the Democratic Party’s nominee for DA.

Sacha maintains that it is “illegal” for Flaherty to be involved with the current Moss investigation, because, in Sacha’s view, both Flaherty and Sedita were involved with “tampering” with the May 2014 grand jury.

Flaherty has repeatedly declined to comment when asked by The News if he was the senior aide who convinced grand jurors to take a second vote and rescind their earlier decision to indict Ballowe on felony charges in May 2014. He said he cannot comment because of state laws on grand jury secrecy.

Flynn, who has the support of Democratic Party leaders in his bid, blames both Sedita and Flaherty for the earlier grand jury voting twice in May 2014.

“I think what they did was totally improper,” Flynn said. “And I believe this new investigation is very disingenuous on the part of Mr. Flaherty.”

Flaherty said he considers it “reprehensible” for his opponents to use “the death of a man and the pain of his family for political gain.” He added that he does not want to be judged on the actions of Sedita or anyone else he has worked under as an assistant DA.

“I am an aggressive prosecutor who’s willing to reopen cases that need another look,” Flaherty said. “I’m not my predecessors. I am my own man, and believe that there’s never a wrong time to do the right thing.”

Moss’ sister, Maria Wrafter, said she believes police and prosecutors are now doing everything they can to get an indictment and a conviction in the case.

“I definitely get the impression they are making a very sincere effort,” Wrafter told The News in a recent interview.

She also said she believes Sedita – and not Flaherty – bears the ultimate responsibility for what happened with the case while Sedita was Flaherty’s boss.

What she doesn’t want, Wrafter said, is for the new investigation to become a political football. She said her family’s main interest is seeing justice done.

“I don’t want this to be part of the elections,” Wrafter said. “Unless I learn otherwise, I just want to give Mr. Flaherty the benefit of the doubt that he really is trying to right a wrong that has been done in the past.”