Since Barry Moss was hit and killed just three days before Christmas in 2013, Gabriele Ballowe has been the primary suspect in the deadly accident. But it took over two years for charges to be brought against her.
Ballowe was arraigned Tuesday afternoon in Erie County Court on two counts of vehicular manslaughter, as well as leaving the scene of an accident without reporting, resulting in death and leaving the scene of an accident, resulting in serious injury.
Prosecutors say the 50-year-old former owner of South Shore Beach Club was behind the wheel when her SUV hit Moss as he walked his bicycle along Route 5 in the Town of Evans.
The family of Barry Moss said, "We are thankful. It's been a long road."
Co-defendant Lynne Laettner is being charged with perjury. Prosecutors say she gave false information to the police and lied to a 2014 grand jury about the case.
Bail was set at $50,000 for Ballowe and $10,000 for Laettner. Ballowe posted bail late Tuesday night.
Previously, Ballowe was not charged in the deadly hit-and-run. Police cited a lack of concrete evidence connecting her to the crime. However, a DMV judge revoked her license for failing to file an accident report and finding "abundant evidence" that Ballowe was driving under the influence of alcohol.
"You never give up. If you know in your heart as a law enforcement officer that you have a good case, you continue to fight," said Evans Police Chief Earnest Masullo.
In criminal court, a suspect must be found guilty beyond a reasonable doubt. But a DMV court has a different burden of proof called the "preponderance of the evidence," which essentially means that it was more likely than not that something occurred in a certain way.
In his decision, the judge wrote that Moss was struck around midnight on December 22, 2013, but his body wasn’t discovered until around 6:00 the next morning. He says 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.
Authorities have consistently described Ballowe as their only suspect in Moss’s death, but said without new evidence, they did have enough to press charges. Police say the vehicle that hit Moss, a Ford Explorer, is registered to Ballowe and remains in their custody as evidence.
In December 2014, police said they had received new witness-based, credible information that took the case in a new direction. It's unclear at this time if that evidence was enough to bring charges against Ballowe in the death of Barry Moss or if new evidence has been uncovered.