BUFFALO, NY (WKBW) — An Erie County judge is being asked to re-examine the conviction of a hit-and-run driver who killed an Evans man. Gabriele Ballowe already served one year in prison for the 2013 death of 52-year old Barry Moss, but now the State Appeals Court wants to review the grand jury indictment against her.
You may recall it took three years to indict Gabriele Ballowe on charges of running down Barry Moss along route 5. She was finally charged in 2016.
It was December 2013 when Ballowe - a former bar owner - hit moss with her SUV after a night of drinking.
She later pleaded guilty to leaving the scene of an incident without reporting - resulting in serious physical injury, but manslaughter charges were dropped.
Ballowe admitted at sentencing to hitting moss saying quote "I believe I came into contact with something - I should have stopped."
Now an appeals court is calling on state supreme court justice judge Christopher burns to review the second grand jury that indicted her.
The higher court wants to know what "new evidence" was obtained because the first grand jury decided not to indict because of lack of evidence. This now leaves the question of if the conviction would be removed from Ballowe's felony record.
Ballowe's attorney, Tom Eoannou, accuses the former Erie County District Attorney Michael Flaherty, of manipulating the case.
"The assistant district attorney went in and said unindict, after review came back and said indict. So we think it's manipulation of the grand jury," Eoannou stated.
But County District Attorney John Flynn, who was not in office at the time, says there's no doubt in his mind Ballowe was guilty.
"Ballowe should have been indicted by the first grand jury. It should have never gotten to a second grand jury. I still believe that and obviously that just feeds into the fact that I believe she's guilty," Flynn told reporters Friday.
Flynn said he believes the matter will stand up in court.
Eoannou said the appeal seeks to overturn the conviction against his client.
"She wouldn't be stigmatized as a felon," remarked Eoannou.
Ballowe completed her sentence and no probation was required.
We've reached out to Moss's sister, Maria Wrafter, for comment. She declined an on-camera interview, but stated "I believe that justice was done and the conviction will stand."
A memorial was created in honor of Moss on Erie Road in Angola.