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For family of Evans man killed in hit-and-run, a 'positive' ending

For the family of Barry Moss, it was victory at last. In the middle of a courtroom, in front of a judge, for all of them to see, the woman who drove away after she hit and killed Barry Moss on a dark December night three years ago admitted her guilt.

“Today is a positive,” Maria Wrafter said after Gabriele Ballowe pleaded guilty to leaving the scene of an injury incident without reporting it. Wrafter, who is Moss’ sister, had been in court for each hearing and conference since Ballowe was arraigned in June. Often accompanied by her mother, Charlotte Moss, she listened stoically as Ballowe’s attorney’s challenged the indictment and the prosecution’s actions, with the case moving steadily forward.

There had been a time when it looked like the death of the 52-year-old Evans handyman would never see justice.

In 2014 a grand jury first voted to indict Ballowe, a former bar owner, and then, when urged by then District Attorney Frank A. Sedita III to reconsider the evidence, voted not to indict.

Evans police were unhappy with that decision, as were many members of the public and Moss’ family. They believed Ballowe was likely intoxicated when she hit him with her SUV in the early morning of Dec. 22, 2013, and then drove away.

Signs for Barry Moss line the streets in the town of Evans Friday, April 11, 2014. (Mark Mulville/Buffalo News)

Signs for Barry Moss line the streets in the town of Evans in this April 2014 photo. (Mark Mulville/News file photo)

A public protest ensued in the Evans area, with yard signs demanding “Justice for Barry Moss.”

Under the advice of her attorney, Ballowe, steadfastly refused to talk to investigators, although she eventually settled a wrongful death civil lawsuit with the family without admitting guilt.

[RELATED: The Barry Moss fatal hit-and-run case, from the handyman’s death to the filing of charges]

Then in January, the case was reopened by Michael J. Flaherty Jr. when he took over the DA’s Office and he assigned Assistant District Attorney Thomas M. Finnerty to reinvestigate the case.

Ballowe was arrested in June after being indicted on charges of first and second-degree vehicular manslaughter and leaving the scene of an incident.

And on Monday, Wrafter and her mother, joined by Moss’ three grown daughters and other family members in State Supreme Court, got what they had been waiting for.

For the first time, Ballowe spoke in public about what happened.

After outlining the conditions of the plea, Justice Christopher J. Burns said to the defendant, as he does in many cases, “Tell me what happened.”

Gabriele Ballowe, 50, shown here during an earlier court appearance, pleaded guilty Oct. 24 to leaving the scene of an incident without reporting resulting in injury. (Derek Gee/News file photo)

Gabriele Ballowe, 50, shown here during an earlier court appearance, pleaded guilty Oct. 24 to leaving the scene of an incident without reporting resulting in injury. (Derek Gee/News file photo)

“On December 21, I was driving down Route 5 in Angola when I realized my vehicle came in contact with something ... and I realized I could have done injury,” Ballowe said.

But when Assistant District Attorney Thomas Finnerty said, in his description of the crime, that Ballowe hit Moss and fled the scene, she equivocated.

“I drove off. I didn’t flee the scene,” Ballowe countered.

The judge didn’t accept that characterization.

“Well, you did not stop to help, did you?” Burns asked.

“No,” she answered.

And, as for how she would plead to the charge, she answered “Guilty.”

For the family of Barry Moss, it was enough.

“After so long, you want to heal and move on,” Wrafter said.

A trial averted

Flaherty said he was confident his staff would have won had the case gone to trial, and he speculated the defense felt the same way, since Ballowe agreed to the plea.

However, he and Finnerty also noted that trials can also be devastating for a victim’s family, as they learn details of what happened to their loved one, and possibly hear attacks on the victim’s behavior.

Even with new evidence from a witness who came forward, prosecutors faced a high bar to prove beyond a reasonable doubt that, not only did an intoxicated Ballowe hit Moss, but that she knew she struck a human being and still deliberately drove away without helping or notifying police. Because of the road and weather conditions, investigators were not able to determine exactly where Moss, who was wearing dark clothing, was when he was struck – on the shoulder of the dark road or on the pavement.

Moss was extremely intoxicated at the time of his death, with a blood alcohol level or more than .40, greater than five times the legal limit for drunkenness. Prosecutors say there were three causes of death listed: blunt force trauma, acute intoxication and hypothermia.

No one knows for sure how long Barry Moss lived after he was hit, but he wasn’t found until after dawn the next morning. Police reportedly also found parts of Ballowe’s vehicle with Moss’ DNA on them at the scene.

“No one, saint or sinner, deserves to die like Barry Moss did, alone and afraid in the freezing rain,” Finnerty said to the judge.

Barry Moss of Evans was a hit and run victim.

The family of Barry Moss approved the plea deal that was reached.

Moss’ family approved the plea, which came with a judicial commitment to consider a sentence of up to one year in jail. They were satisfied with not going to trial, since even with a conviction a defendant often continues to deny guilt, Finnerty said.

The judge said for the record, “Whatever sentence is imposed, there will be no effort to obtain a stay of sentence.”

With sentencing scheduled for Dec. 20, that means that Ballowe can expect to be jailed by Dec. 22, the third anniversary of Moss’ death.

Ballowe’s attorney, Thomas Eoannou, said after court that he was satisfied with the outcome and he called Moss’ death “a tragic accident.”

He also said that, despite defense efforts to challenge the second grand jury indictment, Ballowe was willing “all along” to accept plea for leaving the scene. Assistant District Attorney Nick T. Texido led the successful arguments against having the indictment overturned.

Eoannou did agree after court that Ballowe had “reason to know” she struck Moss because she heard a scraping sound against the side of her SUV. However, he continued to defend her actions, saying she had no reason to think it was a person on a bicycle on a cold December night.

He said she felt that, since there wasn’t a good place to pull over, she would go home and look at damage to her SUV in the morning.

Reopening the case

When Flaherty was named acting district attorney, he announced he would reopen the Moss case. But he faced a challenge.

Because of the first grand jury’s vote to no-bill, prosecutors had to find new evidence that was unavailable to the original grand jury before prosecutors legally could present it again for consideration.

The new evidence turned out to be testimony from a witness who knew Ballowe and spoke with her after Moss was killed. While the plea agreement means that witnesses will not be heard in court, the indictment of another Ballowe friend, Lynn Laettner of Hamburg, gives an indication of what that testimony might have involved.

Laettner, 55, was charged with perjury for allegedly lying to the first grand jury in 2014 about statements Ballowe reportedly made about the hit and run after the incident. She returns to court Wednesday morning.

While prosecutors declined to speak specifically about Laettner’s case, Flaherty said instances of perjury can be costly in terms of time and money, not to mention the emotional toll on a victim’s family.

“Generally speaking, our justice system functions when participants play honestly,” he said. “When you put your hand on the Bible and swear to tell the truth, you’re expected to. Obviously, that doesn’t always happen.”

Flaherty was effusive in his praise for the work of Evans police and other investigators in bringing the case to its conclusion.

“This is a conviction that a year ago we weren’t going to get,” Flaherty said. “We have it today.”

email: mmiller@buffnews.com

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