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Judge ordered to re-examine conviction in Evans fatal hit-and-run

Gabriele P. Ballowe has already served her one-year prison sentence for a hit-and-run death in Evans, but a state appeals court has issued a ruling that potentially could lead to overturning her conviction.

A panel of appeals judges last week ordered Erie County Judge Christopher J. Burns to take a second look at the case of Ballowe, a former Angola bar owner who admitted 2 1/2 years ago that her SUV struck and fatally injured Barry Moss on Route 5 in 2013.

For years, Ballowe refused to answer police questions about the incident. but in December 2016, she pleaded guilty to attempting to leave the scene of an accident that caused death without reporting it, admitting in Burns’ court that she drove the vehicle that struck Moss.

"It was a terrible mistake that will haunt me forever," Ballowe said before Burns sentenced her. "I should have stopped."

Now, the appeals court says Burns should have looked more closely into the circumstances of a grand jury that indicted Ballowe in the summer of 2016. It was the second grand jury to examine the case.

The Fourth Department of the State Appellate Court directed Burns to explain what new evidence had been obtained that justified presenting the case to a second grand jury.

“Ultimately, this could lead to her conviction being vacated,” said Thomas J. Eoannou, who was Ballowe’s attorney. “We object to the way the grand jury process was manipulated in this case by the Erie County District Attorney’s Office.”

Barry Moss of Evans was struck and killed in a hit-and-run on Dec. 22, 2013. (Provided photo)

District Attorney John J. Flynn, who was not in office when Ballowe was convicted, said he believes that "the right person was punished in this case" and that the convicted will be upheld.

The appeal was argued by Nicholas P. DiFonzo of the Legal Aid Bureau of Buffalo.

Moss’ sister, Maria Wrafter, was surprised and upset by the new developments Thursday afternoon when a Buffalo News reporter contacted her.

“She has already admitted in court that she struck my brother and left him on the road to die,” Wrafter said. “If Gabe Ballowe had a decent bone in her body, she would just let this whole thing die. She knows what she did that night.”

Moss, 52, was walking his bicycle home on the night of Dec. 22, 2013, when he was struck by Ballowe's SUV, Evans police said. For many months after Moss’ death, Ballowe refused to answer police questions. Police said she took her vehicle for repairs in Dunkirk hours after the accident.

The case took an unusual turn in June 2014, when The News reported that a grand jury had voted to indict Ballowe on felony charges of driving while intoxicated and leaving the scene of an injury accident. But then-District Attorney Frank Sedita III ordered a top aide to convince grand jurors that there was not enough evidence for an indictment. The grand jury then took a second vote, voting not to indict Ballowe.

After Sedita left office to become a state judge in 2016, acting District Attorney Michael J. Flaherty Jr. reopened the case and had an assistant present it to a new grand jury. That grand jury indicted Ballowe.

“Under state law, you need significant new evidence to justify presenting the case to a new grand jury,” Eoannou said. “We felt strongly that there was no significant new evidence. We asked the judge to find out whether there was sufficient new evidence, but he refused.”

Eoannou was asked why lawyers are seeking to overturn the conviction when Ballowe has already served her jail time and already admitted she struck Moss.

“This incident was a tragic accident, a tragedy that affected a lot of people,” Eoannou said. “We do not believe that Gabe Ballowe should have a felony conviction on her record, with all the stigma and restrictions that go with it.”

"The conviction has not been overturned, and I do not anticipate that it will be overturned," Flynn responded. "The appeals court has asked Judge Burns to go back, review the case, and report back on whether there was enough new evidence to merit presentation to a second grand jury. We believe there was enough new evidence, and we believe Judge Burns will report that to the appeals court. We believe that justice was done in this case, and the conviction will stand."

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