One day after he appears in state court to be sentenced in the Tops massacre, Payton Gendron's attorneys will be in federal court, arguing that he should remain in Western New York rather than be shuttled to a state prison while his federal trial is pending.
Gendron, a 19-year-old racist white gunman who admitted targeting and killing 10 Black people and injuring three others at the Tops Market on Jefferson Avenuelast May, pleaded guilty on Nov. 28 to state charges against him.
Gendron pleaded guilty on the state level to one count of domestic terrorism in the first degree, 10 counts of first-degree murder, 10 counts of second-degree murder as a hate crime, three counts of attempted second-degree murder as a hate crime and one count of second-degree criminal possession of a weapon.
He pleaded guilty to 15 state counts, including the 10 counts of first-degree murder, which automatically dismissed the remaining 10 second-degree charges.
With 23 federal charges still pending, Gendron is expected to be sentenced on the state charges to life in prison without parole on Feb. 15.
But he is scheduled in federal court the very next day, after his attorneys filed a motion seeking to not have him immediately remanded to serve his state prison sentence elsewhere, while the federal trial is still pending.
Meanwhile, discussions over whether the remaining 23 federal charges — including 10 hate crime charges and 13 related weapons charges — will result in a death penalty prosecution are ongoing.
Meetings have been taking place with federal prosecutors, family members and a mitigation specialist that the defense has hired to try and explain why he should not be put to death, according to some family members and their attorneys.
A separate federal proceeding to discuss the status of those talks to remove the death penalty from consideration is scheduled for early March.
Gendron’s attorneys have said that they would be ready to plead guilty to the federal charges if the death penalty on federal charges were taken off the table.
If convicted on all 27 federal charges, Gendron could face either the death penalty or a second sentence of life in prison without parole. That second sentence is one that his attorneys argue would be better served in federal custody.
The filings do not include any indications about the status of a federal death penalty prosecution.
