The vehicle in question is a gray 2013 Ford Explorer owned by Angola beach bar owner Gabriele “Gabe” Ballowe. Although no charges have been filed against Ballowe, police say they are absolutely certain that her SUV struck and fatally injured Evans resident Barry “Bob” Moss last Dec. 22.
An Erie County grand jury voted last month against indicting Ballowe in the hit-run case, but Masullo said his department is still investigating the crime and wants to keep the Ford SUV until the probe is complete.
“We have an active investigation going on, and this is an important piece of evidence,” Masullo said. “Absent a signed order from a judge to turn it over, we plan to hold onto it. Our policies and procedures call for holding on to a piece of evidence from an active case.”
Evans Police received a directive last week from the Erie County District Attorney's Office to return the vehicle to Ballowe, law enforcement officials told The Buffalo News.
District Attorney Frank J. Sedita III, who has received some criticism for his handling of the case, said he believes the SUV should be returned to its owner.
“It's in the possession of his department,” Sedita said of Masullo. “If the chief believes he should make the defense attorney get a court order to make him return it, that's up to him.”
Ballowe's attorney, Thomas J. Eoannou, said his client has the right to have her vehicle returned to her.
“They've already examined her vehicle and got what evidence they need from it,” Eoannou said. “The case was no-billed by the grand jury. There are no charges pending. The police have no legal right to hold onto it.”
If police are ordered by a judge to return the SUV to Ballowe, Masullo said his department intends to make every effort to keep the portion of the SUV that struck Moss and has Moss' DNA on it.
A 2013 Ford Explorer in good condition, with 15,000 miles on it, is worth about $24,000, depending on how many extra features are on the vehicle, according to the Kelley Blue Book website, which is frequently used by car dealers to estimate the value of motor vehicles.
The disagreement over Ballowe's SUV is the latest controversy surrounding the mysterious hit-and-run incident that took the life of Moss, 52. A handyman who had three daughters, Moss was struck on Route 5, injured and left to die early on the morning of Dec. 22.
Police are convinced that Ballowe, 48, was behind the wheel of her SUV when it hit Moss, but Ballowe hired Eoannou to represent her shortly after the incident. The businesswoman has refused to discuss what happened that night with police or the DA's Office.
No one – at least, no one who has come forward – witnessed the fatal accident, which occurred at around 12:15 a.m. near the intersection of Route 5 and Gold Street, police said.
Masullo said police are certain that Ballowe's SUV is the vehicle that hit Moss, because Moss's DNA was found on the right front fender, and because broken parts from the SUV were found at the accident scene.
After hearing testimony from more than 20 witnesses, a grand jury last month voted not to file any charges against Ballowe. But The News reported Sunday that grand jurors initially wanted to indict Ballowe on two felony charges, but were talked out of doing so by a supervisor in Sedita's office.
While declining to comment on exactly what happened in the grand jury, Sedita said he agreed with the grand jury's decision not to indict Ballowe. He said he is willing to present the case to a new grand jury if Evans police come up with valuable new evidence.
“We need solid evidence, not gossip and innuendo,” Sedita said. “We're not going to have people out with torches and pitchforks looking for someone to arrest.”
Sedita was asked about the similarities between the Moss case and the July 2011 hit-and-run case involving Dr. James G. Corasanti, an Amherst physician. Corasanti was accused of manslaughter, driving while intoxicated, evidence-tampering and other charges after his luxury car hit and killed Alexandria “Alix” Rice, 18, who was riding a longboard along Heim Road in Amherst.
Like the driver who killed Moss, Corasanti left the accident scene without reporting the accident to police. He later claimed he was unaware his car had hit a person. After a hard-fought trial in May 2012, Corasanti was convicted of only one misdemeanor charge of DWI. He was sentenced to a year in prison and served eight months.
In the Corasanti case, investigators and prosecutors had “much, much more” evidence to work with than they have in the Barry Moss death, Sedita said.
“In the Corasanti case, you had witnesses who saw him hit Alix, and he admitted he was driving the car,” Sedita said. “We have none of that” in the Moss case.
Police have not found anyone who saw Ballowe's SUV hit Moss, or anyone who claims to have heard Ballowe admit that she was the driver, Sedita said.
That is true, Masullo said but he believes police built a “very solid” case against Ballowe that could have been successfully presented at trial.
“I disagree with Frank, but he is the prosecutor and I do respect him,” Masullo said.
Moss' family has posted a reward of up to $1,000 for information leading to the arrest of the hit-run driver. Anyone with information about the case is asked to call the Crimestoppers organization at 867-6161 or Evans Police at 549-3600.
Moss' sister, Maria Wrafter, said she is glad that Masullo opposes returning the SUV to Ballowe.
“I don't believe she should get it back. There is an active investigation into my brother's death,” Wrafter said. “This is a key piece of physical evidence that should be available for future examination.”
Although the criminal investigation has been unsuccessful so far, Moss' daughters are still planning to pursue a civil lawsuit against Ballowe, said family attorney Michael P. Caffery.
Caffery declined to comment on the latest developments in the case, except to say that “we're continuing our preparations for the lawsuit.”
email: dherbeck@buffnews.com