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A year later, no progress in hit-run fatality

Barry T. Moss’ life was snuffed out a year ago Monday when a hit-and-run vehicle struck him as he walked or rode his bicycle along Route 5 in the Town of Evans.

The vehicle hit Moss, 52, who was making his way home after a night of hard drinking with friends, early on the morning of Dec. 22, 2013. Police said the driver left Moss – a father and grandfather who was known as Bob and worked as a handyman – to die, freezing in the snow, a few hundred yards from the rooming house where he lived.

Just hours after Moss took his last breath, Evans bar owner Gabriele “Gabe” Ballowe took her damaged sport utility vehicle to a collision shop in Dunkirk – about 20 miles south of the accident scene – for repairs.

Ballowe was visibly upset as she told the collision shop manager that she had “hit something” with her vehicle, according to sources close to the case who spoke with The Buffalo News last week.

“I noticed that Gabriele was upset. She told me she had hit something with her car,” the collision shop’s office manager told police a few days after Moss’ death. Ballowe never gave the manager further details about what she had hit, according to the sources’ report of the manager’s statement. Ballowe’s SUV was confiscated by police soon after it arrived at the shop.

A second witness told police that she saw Ballowe drinking with friends in a Blasdell bar before Moss was fatally injured. The witness said she could tell that Ballowe “had too much to drink.” She said that she offered Ballowe a ride home but that Ballowe refused the offer, got into the driver’s seat of her SUV and headed toward Evans.

A third witness told police that he saw Ballowe’s damaged SUV being driven wildly on Lake Shore Road moments after Moss was hit nearby. The man told police the SUV nearly ran him off the road, forcing him to apply his brakes. Then the SUV swerved toward the shoulder of the road “two or three times,” crossed the centerline into an oncoming lane and ran a stop sign, according to the witness. The man said he saw the driver park the SUV outside a bar owned by Ballowe, but the witness never saw the driver.

Ballowe, 49, has been repeatedly identified by Evans police as their one and only suspect in the hit-and-run investigation. The police accident report lists her as the driver of the vehicle that hit Moss. A lawsuit filed by Moss’ family accuses Ballowe of being intoxicated and driving at an unsafe speed when her 2013 Ford Explorer hit Moss.

But Ballowe hired one of the region’s top defense lawyers shortly after the accident and has steadfastly refused to talk with police about the events of that night. She has never admitted driving the SUV at the time of the accident, never denied driving it, and never claimed that someone else was driving it. So far, no criminal or vehicular charges have been filed against her, and none are imminent, law enforcement officials said.

Evans Police Chief Ernest P. Masullo and Detective Lt. Douglas J. Czora feel that they have more than enough evidence to warrant a criminal indictment against Ballowe, but Erie County’s chief prosecutor, District Attorney Frank A. Sedita III, disagrees.

“This case is still on the front burner for us. We have people working on it daily,” Masullo said. “We feel 100 percent certain, more certain than ever, that the suspect we have is the right suspect. I respect Frank Sedita, but I feel he is wrong on this one.”

Moss’ DNA was found on Ballowe’s SUV, and pieces that broke off of the SUV were found at the spot where Moss was hit, police said.

With help from the FBI, State Police and other agencies, Masullo said he hopes his department will obtain enough new evidence to convince Sedita to seek an indictment against Ballowe.

Moss’ family members – including his three daughters; his sister, Maria Wrafter; his mother, Charlotte Moss; and his ex-wife, Eva Valo – are upset with Sedita and the criminal-justice system. So are many Evans residents who still have “Pray for Justice for Barry Moss” signs posted on their lawns.

Some are especially upset because Ballowe has refused to answer any questions from police about what happened that night.

“I don’t think there’s a person in this town who doesn’t know about this case. There’s a lot of frustration,” said Pat Davison, 66, a friend and neighbor of Charlotte Moss. “It sets a precedent, and a bad one – if you do something wrong, lawyer up, keep your mouth shut and you can get away with it.”

Sedita said Friday that he understands why Moss’ loved ones are distressed. He said he agrees that there is “compelling circumstantial evidence” that Ballowe was behind the wheel when her SUV fatally injured Moss.

But – so far, at least – the district attorney feels that police have not obtained enough evidence to prove a case of vehicular manslaughter, driving while intoxicated or leaving the scene of an accident against Ballowe. He said he needs better proof that Ballowe drove the car when it hit Moss, and that she knew that she hit a person and took off anyway.

“(There) must be credible evidence, admissible in a court of law – as opposed to speculation, gossip, and even the opinions of respected police officers, as well as the opinions of former Attorneys General – that establishes each and every element of a criminal offense,” Sedita said in a lengthy email Friday. The district attorney said he “eagerly” awaits new evidence that could enable him to put the case before a new grand jury.

Sedita declined to comment on the statement from the collision shop manager who said Ballowe told her that she “hit something.”

Ballowe, who recently put her beachfront bar – the South Shore Beach Club – up for sale, asking nearly $1.5 million, could not be reached to comment for this article. Her lawyers, Thomas J. Eoannou and Todd C. Bushway, both declined to comment when contacted last week.

In May, after a grand jury voted not to indict Ballowe, Eoannou said Ballowe was exercising her legal rights by refusing to talk with police. The defense attorney said the grand jury “listened to tons of evidence, and determined that no crime was committed by Gabriele Ballowe.”

While refusing to say whether his client was driving the SUV, Eoannou noted that Moss was riding or walking a bicycle in dark, slippery conditions when he was hit.

“There was a bicycle involved, and if, in fact, a metal object was clipped by the SUV, the person driving might think they hit a road barrier, a road sign or something else metallic,” Eoannou said in May. “We conducted our own investigation and found that no criminal activity occurred.”

Sedita said the fact that Moss was highly intoxicated could have been a factor in the incident. He said Moss’ blood-alcohol content was measured at 0.46 percent, an “extreme” level of intoxication that in itself would be “fatal” for “most people.” Moss’ BAC level was almost six times higher than 0.08 percent, New York State’s legal standard for driving while intoxicated.

Moss’ level of intoxication had no bearing on whether the driver who hit him violated the law by leaving the accident scene, police said. Masullo said police believe Moss might have survived if someone had stopped and called for emergency medical treatment.

Sedita said the county Medical Examiner’s Office listed multiple blunt-force injuries as the cause of death, with acute intoxication and hypothermia as contributing factors.

“Nobody deserves to die like Barry Moss did: struck by a motorist on a dark country road, injured and immobilized, and literally freezing to death,” Sedita said.

Sedita’s handling of grand jury proceedings in the case upset Moss’ relatives, according to Wrafter and other family members. As The News reported in June, members of the grand jury voted May 12 to indict Ballowe on felony charges of driving while intoxicated and leaving the scene of an injury accident.

After that vote was taken, a top aide to Sedita told grand jurors that they did not have enough evidence to convict, and asked them to take a second vote, urging them not to indict Ballowe. This time, the grand jury voted not to indict, knowledgeable sources close to the case told The News.

Wrafter said she and her family learned of the second vote only because it was reported by The News. She said an assistant DA had indicated to her family that prosecutors were doing their best to secure an indictment but were unable to do so because grand jurors felt the evidence was insufficient.

“I do not feel that the DA has really been honest with our family about this case,” Wrafter said.

Because of grand jury secrecy laws, Sedita said he cannot discuss in specifics what happened in the grand jury. But he added that “the grand jury’s decision was not the product of coercion.”

Wrafter and police said they hope an $11,000 reward offered through the Greater Buffalo Metropolitan Crime Stoppers program will prompt someone to come forward with valuable information.

“We are sure that there are people out there, more than one person, who know much more than they have told us,” Masullo said. “Maybe during the holidays, one of these people may want to get something off their chest.”

Evans is a close-knit community where many residents have connections to either Ballowe, the Moss family, or both. Two of Moss’ three daughters formerly worked for Ballowe at her bar.

The hit-and-run case has been a major source of controversy among the town’s approximately 16,000 people over the last year, said Robert M. Biondi, president of the Evans-Brant Chamber of Commerce.

Over the last year, critics of Ballowe and her actions in the case held several candlelight vigils and public protests in a small park directly across the street from the South Shore Beach Club. Those protests appeared to have hurt the beach club’s business, according to Biondi, police and several town residents.

“The case has created a lot of fury in the community. I’m sure (Ballowe) has taken some hits in the community,” said Biondi, who also runs the Angola Pennysaver weekly newspaper. “Some people despise her for what she allegedly has done.”

The South Shore Beach Club – which includes 273 feet of Lake Erie beachfront, parking for 150 cars and an apartment with 7,637 square feet of living space – is up for sale for $1,499,000. Ballowe’s real estate agent declined to say why Ballowe and ex-husband Gary Ballowe are selling the place. Gary Ballowe also could not be reached to comment, despite messages left for him by The News.

A wrongful-death lawsuit filed by Moss’ daughters against Ballowe is “still in its early stages,” said Michael P. Caffery, an attorney for the family.

“We are in the process of discovery and are conducting our own investigation,” Caffery said. “Everything we’ve learned so far points to Gabriele Ballowe as the driver of the SUV.”

Andrea Nichols, a mother of two from nearby Derby, never met Moss or Ballowe, but she said she has been emotionally affected by the case.

“I happened to drive by the scene that morning, soon after they found his body. The body was lying there, and the police and EMTs were getting ready to put a sheet over him,” Nichols said.

“It’s personal to me because my mother was hurt by a hit-and-run driver when she was 12. She was in the hospital for months and was scarred for life. Every time I drive by there, I think, ‘How could someone just hit another human being and just drive away?’ ”

email: dherbeck@buffnews.com