On June 19, 2019, Justice Patterson wrote for a 4-3 majority of the New Jersey Supreme Court in the Essex County case of State v. Kareem Tillery. The principal issue was whether a sentencing judge could support the finding of aggravating factors with evidence of charges on which a jury deadlocked. The Court held in relevant part as follows:
When a judge presides over a jury trial regarding multiple offenses, he or she has the opportunity to evaluate the credibility of witnesses and to assess the evidence presented as to each of those offenses. If a jury is unable to return a verdict as to some offenses and convicts the defendant of others, and the State requests that the court consider evidence presented as to offenses on which the jury deadlocked, such information may constitute competent, credible evidence on which the court may rely in assessing the aggravating and mitigating factors.
No Sixth Amendment or other constitutional principle, or statutory provision, generally bars a court from considering such evidence. And consideration of competent evidence presented in support of charges — even if the jury does not go on to convict defendant on those charges — does not raise concerns about drawing inferences from the mere fact that charges had been brought, a practice we found improper in State v. K.S., 220 N.J. 190 (2015).
Nevertheless, we have two concerns about the court’s reliance on evidence pertaining to the four transactions as to which the jury deadlocked in this appeal. First, the charges relating to those four transactions were still pending when the court sentenced defendant and were not dismissed until the end of the hearing, moments after the court imposed the sentence. The record does not reveal whether the State had advised the court and defense counsel that it would move to dismiss the remaining charges immediately after sentencing.
It appears the State was more interested in gamesmanship here than it was in doing justice. An alternative ploy would have been to wait until the defendant served as much of his sentence as possible before dismissing the charges.