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DMV judge says “abundant evidence” shows Ballowe drove fatal hit-run SUV

A state administrative law judge said he found “abundant evidence” that Gabriele P. Ballowe was driving and under the influence of alcohol when her vehicle struck and fatally injured pedestrian Barry T. Moss in Evans 13 months ago.

And the fact that Ballowe previously was convicted of an alcohol-related driving offense may have given her a “motive” to flee from the accident early on the morning of Dec. 22, 2013, Administrative Law Judge Glenn E. Murray wrote in revoking Ballowe’s state driver’s license.

While The News previously reported that Murray was revoking Ballowe’s license, the full report did not become available until late last week.

In his written findings, Murray said he decided to revoke Ballowe’s license because she failed to report the accident and because she failed “to exercise due care for a pedestrian.”

“I find abundant evidence that respondent voluntarily and unlawfully operated her vehicle while under the influence of alcohol, and that this constituted gross negligence in the operation of a motor vehicle,” Murray wrote.

Murray noted that the only witnesses at the Department of Motor Vehicles hearing were two Evans Police lieutenants who described the evidence they gathered and testified that all evidence leads to the conclusion that Ballowe drove the vehicle and fled the scene without reporting the accident.

Ballowe was given the opportunity to testify but did not.

Noting that a witness reported seeing Ballowe’s damaged vehicle being driven wildly moments after Moss was hit and then being parked in a lot outside Ballowe’s home, Murray wrote: “Under these circumstances, I find Ballowe’s flight from the accident scene exhibited consciousness of guilt, to wit; that she was driving under the influence of alcohol when she was involved in an accident.”

Even though Evans police months ago listed Ballowe as the driver of a hit-and-run vehicle that killed Moss, no criminal charges have been filed against the 49-year-old Angola woman. A grand jury originally voted to indict her but then rescinded that decision upon a request from prosecutors, who felt there was not enough evidence to convict her.

“This is a small moral victory,” Evans Police Chief Ernest Masullo said after Murray’s ruling. “It sounds like Judge Murray listened intently to the evidence at the hearing and came to the same conclusion that we did.”

Masullo said he disagrees strongly with Erie County District Attorney Frank A. Sedita III, who feels there is not enough evidence to prove that Ballowe is guilty of criminal activity, including leaving the scene of an injury accident, which can be a felony crime.

“It’s not enough just to show that she was driving,” Sedita said. “I’d have to prove beyond a reasonable doubt that she hit somebody, that she knew that she hit somebody, and that she made a conscious decision not to inform the authorities ... Why won’t your newspaper inform the public of that?”

When asked for his views on Murray’s decision in the DMV case, Sedita said: “That’s an administrative proceeding. What does it have to do with me?”

Sedita noted that a DMV administrative hearing is a noncriminal proceeding that does not require the same standards of proof as a criminal trial.

“It’s not a criminal trial, where the prosecutor has the burden of proving the case beyond a reasonable doubt,” the district attorney said.

Sedita added that, because of what he considers unfair media reports on the case, people on the street, people he sees in grocery stores, people who call him on the telephone and “even my own mother” question and criticize him for failing to prosecute Ballowe.

Sedita defended his handling of the case, saying his responsibility as district attorney is to make prosecutions based on the evidence and the law, and not based on media reports or public pressure.

“It’s not enough to know it. You have to show it,” Sedita said.

Ballowe’s attorney, Thomas J. Eoannou, declined to comment on the case Friday. He said Ballowe has exercised her constitutional rights by declining to talk with police about the accident. He said he plans to appeal Murray’s decision.

In his written findings, Murray noted that Ballowe was convicted of driving while impaired by alcohol in the Town of Hanover in October 2005. After that conviction, Murray noted, Ballowe completed a state-mandated Drinking Driver Program in 2006.

At the Drinking Driver Program, Ballowe would have learned that people who already have been convicted of an alcohol-related driving offense could face “enhanced penalties” under the law if they are convicted of a second alcohol-related offense, especially if that involved a fatality, Murray wrote.

“I find” that Ballowe’s 2005 conviction “is relevant in establishing Ballowe’s motive to flee the scene of the accident,” Murray wrote.

The DMV judge also cited a statement given to police by a waitress in a Hamburg restaurant where Ballowe was drinking and eating with friends prior to the accident. The waitress told police she thought Ballowe was intoxicated and offered to drive her home, an offer Ballowe refused, Murray said.

“I remember saying a prayer for her to get home safe,” the waitress told police.

Although the Evans police case is based on circumstantial evidence, the evidence presented at the hearing was credible and no evidence was presented claiming that Ballowe was not driving the vehicle, Murray wrote.

Murray also noted in his ruling that police reported that Moss was intoxicated, wearing dark clothing, and walking a bicycle on wet pavement when the SUV hit him.

In an email to The News, Sedita wrote: “This is clearly a circumstantial evidence case: no one actually witnessed the suspected crimes and Ballowe made no confession or unequivocal admissions. Although circumstantial evidence can be as persuasive as direct evidence, there are special rules.”

Sedita said state law requires that, when circumstantial evidence is used to prosecute someone, “it must appear that the inference of guilt is the only one that can fairly and reasonably be drawn from the facts and that the evidence excludes beyond a reasonable doubt every other reasonable hypothesis of innocence.”

Sedita said he would be willing to put the case before another grand jury if police came up with compelling new evidence.

Based on evidence presented by Sedita’s office, a grand jury voted last May to indict Ballowe on felony charges of driving while intoxicated and leaving the scene of an injury accident.

But after that vote was taken, a top aide to Sedita asked the grand jurors to reconsider and take a second vote, according to knowledgeable sources close to the case. The grand jury agreed, and after the supervisor told them he did not believe there was enough evidence to convict Ballowe, the grand jurors took a second vote, and did not indict.

Although several local lawyers said it is unusual for a prosecutor to ask a grand jury to rescind its vote on an indictment, Sedita said there is nothing improper about prosecutors giving guidance to help grand jurors make the right decisions under the law.

Moss’ sister, Maria Wrafter, said she and her family feel the case could be successfully prosecuted at trial and disagree with Sedita’s view of the evidence.

“I fear the impact the lack of justice will have on my brother’s children and my children. Someone got drunk, drove a car, struck a person, sped off leaving him to freeze to death, and never took responsibility for her actions,” Wrafter said. “Then the District Attorney’s Office helped her get away with it.”

email: dherbeck@buffnews.com