Man pleads guilty to gun charge at Tops where unrelated 2022 mass shooting occurred

BUFFALO, N.Y. (WIVB) — One of two men accused of handling a gun at the Tops supermarket on Jefferson Avenue — the site of a 2022 racist mass shooting — has pleaded guilty to attempted criminal possession of a weapon, a violent felony.

According to police reports obtained by News 4 Investigates, a witness reported on June 17 that a man waved a gun at his daughter near the Tops parking lot. The father told police a vehicle operated by one of the suspects almost hit his truck as it exited the parking lot, when one of the men rolled down a window, yelled at him, and waved a gun in his direction.

Buffalo police officers stopped the vehicle a few blocks away from the store and recovered two loaded 9mm ghost guns, along with three loaded magazines from one of the suspects’ pants. One of the guns had an illegal 15-round magazine, police said.

Store surveillance video showed two men — identified by police as Avello Pena and his half brother, Ronnie Midgett — passing a gun back and forth, according to investigators.

On Oct. 6, Midgett, of Buffalo, pleaded guilty to attempted criminal possession of a weapon. He faces up to seven years in prison when he is sentenced Dec. 18.

Midgett’s attorney, Celia Szczur-Benz, said Pena handed Midgett the gun while in the store. She said Midgett questioned why Pena took out the weapon, then tucked it into his pants before both men left the store.

The incident happened at the same store where an 18-year-old from Conklin, N.Y. fatally shot 10 Black people and wounded three others in a racist massacre on May 14, 2022.

Pena, of Tonawanda, still faces five charges, including two counts of second-degree criminal possession of a weapon, second-degree menacing, and third-degree criminal possession of a weapon.

Neither the Buffalo Police Department nor Tops disclosed the incident to the community until June 26, after the report by News 4 Investigates.

The late notice led some Buffalo Common Council members in July to question the police department about why it did not immediately inform the public.

“I shouldn’t have to find out about this from a news reporter a week and a day later,” Masten District Common Council member Zeneta Everhart said in July. Her son was working at the store during both the 2022 massacre and this incident in June.

“This is Tops on Jefferson. This is hallowed ground,” Everhart said.

At the time, a Tops spokesperson said store surveillance video showed “no firearms were pulled on any individuals on the Tops property.”

Erie County District Attorney Michael Keane said in June there was no indication the men targeted the store or its customers. Keane declined to comment Tuesday because Pena's case remains active.

News 4 Investigates confirmed Pena has a prior criminal record.

According to court documents, Pena was indicted and pleaded guilty to an assault charge for shooting a man in 2010. In addition, in 2013, he pleaded guilty to second-degree burglary for breaking into the vehicle and home of Erie County Executive Mark Poloncarz. He has served eight years in prison.

Both Midgett and Pena remain in custody without bail.

Pena is scheduled to appear in court for a pretrial conference Nov. 18 before Erie County Court Judge James Bargnesi.