The acting district attorney, who hopes to replace outgoing DA Frank Sedita, promised to be tougher on crime. Now he's looking into a fatal hit-and-run from December 2013 that was never criminally prosecuted.
Evans Police Chief Ernest Masullo tells 7 Eyewitness News he was contacted by a member of the acting district attorney's office, who said that the the acting DA, Michael Flaherty, wants to take a second look at the Barry Moss case.
"We're going to give all the information we have to the District Attorney," said Chief Masullo. "We're going to sit down and explain to them what evidence we have, why we feel so strongly. There is going to be a new set of eyes, a new attitude to look at it, and hopefully they agree with us that there is enough evidence to resubmit it to a grand jury."
We reached out to the acting DA, who said he "can't comment at this time."
Masullo says although DA Sedita chose not to convene a drand jury on this case, the department hasn't stopped investigating and collecting evidence. Masullo says as early as last month, a credible lead came in which will be presented to the acting DA.
Last August, an undisclosed settlement was in the civil lawsuit concerning Moss's hit-and-run death. Moss's daughters and other family members brought the wrongful death lawsuit against Gabriele Ballowe, 49, a former Angola bar owner who police suspected from the beginning was responsible for killing Moss.
While financial terms of the settlement are not being disclosed, persons close to the case tell 7 Eyewitness News that Ballowe and her insurers only admitted that Ballowe's SUV was the vehicle that caused the fatal accident. Ballowe was not required to admit that she was the driver.
Masullo confirms Ballowe's Jeep is still impounded by police and is being used as evidence.
"It is bittersweet. The family gets some type of closure with the civil end of it. We focus on the criminal end of it and I want people to know out there that we are still investigating it. This is not the end because the civil case was settled. So all the hundreds of phone calls, letters and support we received, we are going to continue to investigate like we would any other case," said Evans Police Chief Ernest Masullo after the settlement was announced.
"Justice was not served but it isn't too late," added Maria Wrafter, Barry Moss' sister.
Wrafter explained that while she is very disappointed with the way the Erie County District Attorney's Office headed by Frank Sedita handled the grand jury proceedings that failed to indict Ballowe, she is hopeful that Evans Police working with the FBI and New York State Police will be able to successfully bring a criminal prosecution regarding her brother's death before the statute of limitation runs out in December 2018.
"I feel there has been progress and there has been consequences, just not all that there should be. I believe it was the power of prayer that did that," said Wrafter.
Chief Masullo said he believes Ballowe confided to others about the fatal accident but they are choosing to withhold the information. The police chief is now hoping with the civil case over that Ballowe will be more cooperative. "I can't believe any human being can walk away and live with this for the rest of their lives. So come in and talk to us, tell us what happened and lets all of us deal with it."
Masullo said Sedita told him that he needs "compelling evidence over what we had" before the case can be again presented to a grand jury. "And that is what we are shooting for," commented Chief Masullo.
Under the civil lawsuit, it was alleged that Gabriele Ballowe struck Barry Moss with her Ford SUV around midnight on December 21, 2013, and that Ballowe, who was intoxicated, left Moss to suffer "pre-impact fright, significant pain and suffering, exposure to extreme cold temperatures for an extended period of time causing hypothermia and fear of impending death for several hours."
And though Ballowe hasn't been charged criminally, a DMV judge found that she was driving when her vehicle hit and killed Moss, who was walking his bicycle on the side of Route 5.
The judge revoked her license for failing to file an accident report. Ballowe declined to appear at the hearing and sent her attorney, Thomas Eoannou, on her behalf.
In his decision, the judge writes evidence shows Moss was intoxicated and in the roadway while walking his bicycle. Though Moss was wearing dark clothing, his bicycle had reflectors on it.
Although the judge found Ballowe was driving the night Moss was hit and killed, he says there is no direct evidence – only circumstantial evidence.
A witness placed Ballowe in the vehicle at her former restaurant 15 minutes before the accident occurred. And around 10 minutes after the accident, another witness described seeing Ballowe’s vehicle with damage to the front passenger side and that it ran a stop sign.
That witness also gave the vehicle’s direction of travel – which was towards Ballowe’s home. He followed her for a distance and says he saw her swerving, failing to maintain her lane, and running a second stop sign before the driver pulled into Ballowe’s driveway.
Due to that testimony, a judge determined Ballowe was behind the wheel, intoxicated, and fled the scene after hitting Moss. He noted Ballowe’s prior DWAI conviction in 2005, and says she would be aware of the enhanced penalties she would face for a second DWI, especially one that caused a man’s death.
The judge said the fact Ballowe has not been charged with a crime did not have an impact on his ruling. He says unlike a criminal proceeding, where no negative inference can be drawn from not testifying, the same is not true at an administrative proceeding. And though he finds Ballowe’s unwillingness to speak does have a negative inference, he says his decision was made off the evidence without the need to have the negative inference carry any weight.
He revoked Ballowe’s license for failing to exercise due car for a pedestrian, gross negligence in the operation of a motor vehicle, and causing the death of Barry Moss. Her license will remain revoked until she files an acceptable accident report. If she did so, it would place her behind the wheel at the scene of Moss's death.
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