The Appellate Division continued in relevant part: Because the charges were pending when defendant was sentenced, the allegations were unproven. As the Attorney General candidly acknowledged during oral argument before us, if defendant is acquitted on the new charges, he would have a valid basis to move for resentencing. See State v. Murray (2000) (providing an illegal sentence “may be corrected at any time before it is completed”); see also R. 3:21-10(b)(5). But that potential remedy does not cure the present injustice. We discern no constitutionally significant distinction between a sentencing court’s consideration of acquitted conduct and pending charges to enhance a defendant’s sentence. “Such a practice defies the principles of due process and fundamental fairness.” We invalidate the no-new-charges provision here because, as defendant and the ACDL-NJ argue, the provision unlawfully permits the court to enhance a defendant’s sentence based on unadjudicated charges that are unrelated to the admitted crimes. We therefore hold only a no-new-arrest or no-new-charges portion of a Subin plea provision is void ab initio.
We hasten to add the State is not prejudiced by our holding. The State may argue a defendant’s arrest on new charges while released pending sentencing should be considered by the trial court when weighing the aggravating and mitigating factors for the crimes to which defendant pled guilty. See, e.g., State v. Rice (App. Div. 2012) (“Adult arrests that do not result in convictions may be ‘relevant to the character of the sentence imposed.'” (quoting State v. Tanksley (App. Div. 1991))). The State may also argue any sentence on the new charge should run consecutively to the sentence imposed on the initial charges. See N.J.S.A. 2C:44-5(h) (mandating consecutive terms of imprisonment, absent certain findings, when a defendant is sentenced for an “offense committed while released pending disposition of a previous offense”).
One point that the prosecution could counter with is that the vast majority of charged cases do not end in outright acquittals. A counter to the prosecution’s point about moving for re-sentencing is that there are delays inherent in such a motion. Therefore, months are likely to pass before a re-sentencing motion can be briefed, calendared, and decided. During that time, a defendant will usually be sitting in jail based on acquitted conduct.