Wednesday morning will be the third anniversary of the date an intoxicated Gabriele P. Ballowe left a Hamburg bar, drove south on Route 5, struck Barry Moss with her SUV and left him beside the road to die. It will also be the first full day in three years that Moss’ family will feel that justice has been done.
“Tomorrow, the day my brother was killed, she will wake up in jail,” said Maria Wrafter, Moss’ sister, who has been coming to court all year as the case against Ballowe ground on.
Ballowe, 51, pleaded guilty in State Supreme Court in October to leaving the scene of an incident without reporting, resulting in death – a lesser charge than the manslaughter one she originally faced. Tuesday morning, Justice Christopher J. Burns sentenced her to one year imprisonment in the Erie County Correctional Facility.
The judge was unswayed by statements from Ballowe’s attorney, Thomas J. Eoannou, that sought to shift responsibility for the incident to Moss, and that implied the impact that killed him was little more than “a glancing blow.”
Moss, 52, was hit as he walked or rode his bicycle along Route 5 in the Town of Evans late on Dec. 21 or early on Dec. 22, 2013. The driver did not stop and the critically injured Moss remained along the roadside through the night, his body not discovered until morning.
One of Moss’ daughters, Cassandra Moss, described the years of pain this caused the entire family. She said a 6-year-old grandson still wakes up crying, wondering “Why would she just leave him like that?”
“Left to die on the side of the road,” Cassandra Moss told the judge. “He was left there like an animal, as if he didn’t have a life to get back to.”
Her father, who worked as a handyman and enjoyed spending time with his daughters and grandchildren, might have lived had the driver stopped, she said.
“He didn’t die right away,” she said. “He froze and bled to death. He died of hypothermia because she chose to leave him there.”
Thoughts of her father’s last hours continue to haunt her, she said.
Eoannou tried to create a different image, of an unintended tragedy taking place on a dark, foggy night, filled with ambiguity.
“This is not a case where someone saw someone, knew they hit someone and left,” Eoannou said.
He said that Moss was extremely intoxicated when he left a friend’s house to go home that night, was wearing dark clothing and that “no one knows the position of Mr. Moss, where he was....
"He may not even have been vertical when he was hit,” Eoannou speculated.
“That’s why (Ballowe) has not been held criminally responsible for manslaughter,” Eoannou said.
He also said that, the morning that Ballowe heard that Moss was the victim of a hit-and-run driver, it was Ballowe’s friends who advised her to call an attorney rather than the police. And it was the attorney – Eoannou – who told her to invoke her right to keep silent.
“The delay (in admitting wrongdoing) doesn’t reflect an indifference or a callousness by Gabe Ballowe,” Eoannou said.
Instead, he portrayed his client as a formerly respected businesswoman who was quiet and charitable, who sold both her home and bar to pay a civil settlement with the Moss family.
He asked the judge to consider a sentence of probation and counseling.
If Ballowe wanted to get counseling, that would be up to her, Burns responded.
“The defendant had a legal and a moral obligation to stop and help,” Burns said. “The only recourse now is to see that justice is being done.”
Burns credited the tenacity of the Town of Evans police in pursuing the case, then ordered that Ballowe spend a year in jail, starting immediately.
The judge’s decision was satisfying for prosecutors and the Moss family, who were not pleased with Eoannou’s presentencing statement.
"I was very surprised hearing that," Moss's daughter Ashley Venters said later. "We are very truthful, and we were surprised that he was allowed to make those types of statements."
Acting District Attorney Michael J. Flaherty Jr. said afterward that Ballowe was offered a chance to plead to the lesser charge only to spare the Moss family the stress of a trial. It also required Ballowe to admit her guilt in court and on the record.
“And then we had to hear her attorney play the ‘blame the victim’ game,” Flaherty said with unmasked irritation. “I am sorry the family had to listen to that.”
Charlotte Moss, Barry Moss' mother, said she had been handling the proceedings well until Eoannou spoke. That left her shaken.
Her daughter, Wrafter, asked that people “not fall for ‘story time’ from Tom Eoannou” before she refuted most of his claims: Her brother was not in dark clothing, she said. He was wearing a light tan jacket.
The alleged “glancing blow” that hit Moss was so hard that it bent the frame of Ballowe’s SUV. It also shattered a head lamp, meaning Moss was directly in the driver’s line of sight when he was struck.
“She knew,” Wrafter said. “She knew.”
Equally upsetting for the family was that Ballowe also knew Barry Moss and his family, and still didn't come forward.
"My father frequented her establishment," Venters said of Ballowe's bar, the South Shore Beach Club on Old Lakeshore Road, and Cassandra Moss worked there at one time.
Ballowe finally admitted that in court Tuesday morning.
"I should have stopped. It was a terrible mistake that will haunt me forever," Ballowe told the judge. "I know the Moss family. I am sorry and I hope that someday they find peace."
Charlotte Moss said Tuesday's sentencing may help with that, but the family agreed it is still difficult to understand why it took so long to find justice.
The first break in the case came within two days of Barry Moss' death, when Evans police located the car they believed hit him. In 2014, the case was presented to a grand jury, and the panel voted to indict Ballowe. However, after then-District Attorney Frank Sedita III learned that some witnesses had changed their testimony from what prosecutors had expected, he had the jurors reconsider their decision. The second time, they voted not to indict.
What happened with the grand jury was leaked to the media and the Barry Moss case became deeply politicized. Meanwhile, in August 2015, Ballowe settled a civil case filed on behalf of Barry Moss' daughters without admitting any guilt.
Also in 2015, Sedita was elected to the State Supreme Court bench and in January his first assistant, Flaherty, took over. Flaherty assigned ADA Thomas Finnerty to reinvestigate the case. In June Ballowe was indicted on charges of first-and second-degree vehicular manslaughter, along with the lesser charges of leaving the scene. And a friend of hers, Lynne Laettner, was charged with perjury for her grand jury testimony.
Laettner pleaded guilty to a misdemeanor in November and Burns granted her a conditional discharge.
On Tuesday, Flaherty expressed satisfaction that Ballowe finally was held accountable. He had been caught in the political storm that surrounded his former boss, Sedita, after the first grand jury changed its vote, but still decided to get an indictment.
He succeeded, but then saw more defense efforts to delay prosecution of the case, possibly until next year when a new district attorney takes office.
Flaherty credited Justice Burns for holding fast to his plan to hold Ballowe's trial in November. He believes that is why she decided to accept the plea and let Moss' family get on with their lives.
"Is this a happy moment? No," Flaherty said. "This is a day of relief and of recognition that the system worked."