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Perseverance of Evans police brings vindication with charges in Moss case

It was June 2014. Seven months had passed since a hit-and-run driver killed handyman Barry T. Moss in Evans. Town Police Chief Ernest P. Masullo learned that Erie County prosecutors, already reluctant to charge his prime suspect, had asked a grand jury poised to indict the woman to reconsider.

As requested, the grand jury filed no charges. But a disappointed Masullo insisted he was not giving up.

“A man died,” he told The Buffalo News two years ago, after hearing of the bizarre turn. “We plan to keep working it. We’re not going to just let it drop.”

His perseverance, and that of a slew of detectives, paid off Tuesday when businesswoman Gabriele Ballowe, 51, was arraigned on four charges in the death, including vehicular manslaughter. Police and prosecutors theorize that she was driving home from a restaurant when her sport utility vehicle struck Moss as he walked along Route 5 in the town.

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Moss was left for dead 30 months ago – on Dec. 22, 2013. He was 52 years old. Since then, Ballowe settled a lawsuit filed by the Moss family, and her license was revoked by the state Department of Motor Vehicles. But for most of that time, then-District Attorney Frank A. Sedita III insisted on more evidence before Ballowe could be charged.

The status quo held until January, when Sedita became a State Supreme Court justice and his second-in-command, Michael J. Flaherty Jr. started running the office. Flaherty, who is campaigning to become district attorney, realized that the case couldn’t languish and, after a key development, had the matter presented to another grand jury.

When Masullo convened a news conference Tuesday afternoon, he had plenty of praise for Flaherty. “A man of his word,” he called him. But the police chief wanted to state that, to him, there had long been enough evidence to put Ballowe before a jury of her peers.

It’s not common for police chiefs to question a prosecutor’s decisions. Masullo, however, intended to speak his mind. “I spoke with then-DA Sedita regarding what had occurred in the grand jury,” he said, looking back to 2014. “He explained to me what was needed to get an indictment and a conviction. We agreed to disagree.

“As I told anyone who would listen, I felt we had enough evidence to get this case to trial.”

Indeed, the police had amassed a weighty set of circumstances. Witnesses had seen Ballowe eating and drinking alcohol in a Hamburg restaurant before rebuffing a waitress’ offer to drive her home and departing in her Ford Explorer. Moss was hit less than a half-hour later on Route 5 near Gold Street – a time and place that fit with Ballowe’s likely location on her journey.

A motorist told police he noticed a damaged front end on an SUV – later determined to be Ballowe’s – as it ran a stop sign and nearly forced him off the road, not far from where Moss lay dying. Police questioned Ballowe’s family and learned that none of its members could have been driving the vehicle that night. And when she took it to a repair shop in Dunkirk, rather than a shop closer to her home, Ballowe reportedly told the manager she had “hit something.”

Not only did Sedita want certainty that Ballowe was driving the SUV, he wanted certainty that she knew she had hit another human being and drove off.

“As I stated over and over again, we thought we had enough evidence to get an indictment and get it to a jury trial,” Masullo said Tuesday.

The local office of the FBI devoted an investigator to the case. Then the State Police became involved.

With town detectives, they reviewed evidence and talked to other potential witnesses. In January, Flaherty assigned some of his people, including Assistant District Attorney Thomas M. Finnerty. The logjam finally broke.

When asked whether he thought Sedita had made the right decision in not pressing the case, Flaherty said Sedita made the best decision he could with the information he had.

“I decided to take a second look at that,” Flaherty said.

When Masullo was asked what this moment means to him, his thoughts quickly turned to the Moss family.

“The family is going to get some peace of mind. It has been on their mind for 31 months,” he said.

“We are finally going to get our day in court.”

“It’s not about me,” he added, when pressed. “… It’s not about any individual. It’s about what the results are at the end of the day.”

In the background were several members of the Moss family, including his mother, Charlotte Moss. To her, Masullo kept his word.

“He has always been there for us,” she said. “He said he was going to keep going. And he did.”

email: mspina@buffnews.com