SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5872-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEMALL D. BROWN,

Defendant-Appellant.

_______________________

Submitted May 26, 2020 – Decided July 16, 2020

Before Judges Sabatino and Sumners.

On appeal from the Superior Court of New Jersey, Law 

Division, Burlington County, Indictment No. 17-03-

0319.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Daniel Vincent Gautieri, Assistant Deputy 

Public Defender, of counsel and on the brief).

Scott A. Coffina, Burlington County Prosecutor, 

attorney for respondent (Nicole Handy, Assistant 

Prosecutor, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2

A-5872-17T4

A New Jersey State Trooper pulled over a vehicle driven by defendant

Jemall D. Brown for speeding on the New Jersey Turnpike. When the trooper 

asked for defendant's credentials, he maintained he smelled burnt marijuana 

emanating from the vehicle and requested consent to search the vehicle, which 

defendant purportedly granted. The search led to the seizure of eighty-eight 

credit cards and gift cards located in various places within the vehicle, and the 

arrest of defendant and two passengers in the vehicle.

Following defendant's indictment, defendant's motion to suppress the 

seized evidence claiming the search was unconstitutional, was denied. In the 

subsequent trial, a jury found defendant guilty of conspiracy to engage in the 

fraudulent use of credit cards, N.J.S.A. 2C:5-2(a)(l) and 2C:21-6(h). Defendant 

was found not guilty of eighty-eight counts of knowingly using any counterfeit, 

altered or fraudulently obtained credit cards, N.J.S.A. 2C:21-6(h), and one count 

of intent to defraud a purported issuer or organization providing something of 

value by using a falsely made or embossed credit card, N.J.S.A. 2C:21-6(c)(5).

Before us, defendant argues:

POINT I

THE TRIAL COURT ERRED IN DENYING 

[DEFENDANT'S] MOTION TO SUPPRESS 

EVIDENCE BECAUSE THE STATE FAILED TO 

PROVE THAT BROWN UNEQUIVOCALLY 
3

A-5872-17T4

CONSENTED TO THE SEARCH AND BECAUSE HE 

WAS DEPRIVED OF AN OPPORTUNITY TO 

EXERCISE HIS RIGHT TO TERMINATE THE 

SEARCH.

POINT II

THE TRIAL COURT ERRED IN DENYING 

[DEFENDANT'S] MOTION FOR A JUDGMENT OF 

ACQUITTAL ON THE CONSPIRACY CHARGE 

BECAUSE NO PROOFS WERE PRESENTED THAT 

THE OCCUPANTS OF A RENTED CAR HAD 

CONSPIRED TO USE FRAUDULENT CREDIT 

CARDS THAT WERE ALMOST ENTIRELY IN THE 

POSSESSION OF THE FRONT-SEAT PASSENGER.

Having considered the record before us and the applicable law, we affirm 

in part and reverse and remand in part.

I.

A. Suppression Hearing

At the two-day motion to suppress hearing, the State presented the 

testimony of New Jersey State Trooper Anthony Wolcott regarding the 

warrantless stop and search of defendant's rental car on November 19, 2014, at 

approximately 2:16 p.m. In addition, the State presented a motor vehicle 

recording (MVR) video from Wolcott's police cruiser, depicting the stop of 

defendant's vehicle and the subsequent interactions with him. Defendant 

testified as well. 
4

A-5872-17T4

Wolcott testified he was parked in his patrol car and running a speed 

detecting laser when he identified a vehicle traveling ninety miles per hour in a 

sixty-five-miles-per-hour zone. He proceeded to follow the vehicle and 

activated his lights to pull the vehicle over to the shoulder of the road. He 

testified the vehicle took some time to pull over, and he observed someone in 

the backseat moving around in the vehicle before it stopped.

When the vehicle stopped on the shoulder of the road and Wolcott walked 

to the car, Wolcott stated he smelled burnt marijuana when he asked defendant,

the driver of the car, for his credentials. When Wolcott went back to his patrol 

car to check on defendant's credentials, he notified the dispatcher he smelled 

marijuana in defendant's vehicle. Upon returning to defendant's vehicle, 

Wolcott asked defendant to step out of the car. After defendant complied, 

Wolcott informed defendant he smelled burnt marijuana in the vehicle, 

whereupon defendant acknowledged marijuana had been smoked in the vehicle

earlier that day. Wolcott told defendant he was being detained because of the 

marijuana odor and put him in the back of the patrol car after handcuffing him. 

Ossey Etienne, the backseat passenger in defendant's vehicle, was also 

handcuffed and placed in the patrol car with defendant.
5

A-5872-17T4

Seeking to search defendant's car, Wolcott testified he read the consentto-search form to defendant twice. After the first reading, Wolcott stated 

defendant "wanted to know if he could depart from the scene or what I would 

do if he said no to the search. . . . I explained to him that I would speak to my 

sergeant about requesting a search warrant . . . ." After Wolcott read the form a 

second time, he stated defendant "nodded yes, said sure. I said yes? He said 

yes. Shrugged his shoulders. Shrugged his shoulders." Wolcott radioed his 

sergeant informing him of defendant's consent to the search, without any 

comment from defendant. Even though defendant supposedly consented, 

Wolcott did not have him sign the form before the search because it was "[S]tate 

[P]olice policy approved by the [A]ttorney [G]eneral's [O]ffice . . . to request 

him to sign afterwards[.]" Defendant, however, refused to sign the consent-tosearch form when he was taken to the police station.

On cross-examination, Wolcott was asked: "[F]rom the video itself, . . . 

would it be fair – just from listening from the layman's perspective . . . to say 

[defendant] . . . stated sure and yes in the video?" Wolcott responded: "From 

where I'm sitting that's what it looked like to me." He stated he read the consentto-search form a second time because he was seeking a clear yes or no answer

from defendant.
6

A-5872-17T4

Wolcott proceeded to search defendant's car while another trooper, Joe

Walsh, who had arrived at the scene for back-up, sat in the front seat of Wolcott's 

patrol car to keep an eye on the handcuffed defendant and Etienne in the 

backseat. Wolcott stated he could hear defendant from where he was searching 

defendant's car but heard no request by defendant to stop the search. Wolcott 

also stated Walsh never informed him that defendant voiced any objection while 

the search was being conducted.

When the MVR was played during the hearing, only a portion of the 

ninety-minute long video was played. Based upon Wolcott's testimony, the 

following was shown: Wolcott pulling defendant's car over and obtaining his 

credentials; Wolcott's interactions with defendant including the detainment, 

handcuffing, questioning, and readings of the consent-to-search form; Wolcott 

informing his sergeant that defendant consented to the search of his car; and the 

moving of defendant and Wolcott's cars to enable the search to be conducted on 

a safer stretch of the road.

Defendant testified he was traveling from Pennsylvania, where he visited 

his brother, to New York, where he lived. The car he was driving was rented 

from JFK Airport. He testified he did not know why Wolcott pulled him over 

because he "was on the cruise control at 65 [miles per hour]." He explained he 
7

A-5872-17T4

was arrested and placed in the back of Wolcott's patrol car because the trooper 

claimed to have smelled marijuana coming from his vehicle, but he did not have 

any marijuana on him or in the car. 

Defendant testified that while handcuffed in the patrol car, Wolcott 

requested consent to search the rental car. He explained the first time he was 

asked he responded stating, "what would happen if I said no. Then the officer 

explained to me that a supervisor would come. Then the supervisor would have 

to okay the warrant[.]" Walcott asked him for consent again and he recalled 

responding by shrugging and telling him "I don't know. . . . I was basically 

trying to tell [Wolcott] that I was unsure of how the process works. And I was 

just waiting for a supervisor to arrive, which never happened."

Defendant testified that after saying "I don't know[,]" Wolcott began to 

search his vehicle. On cross-examination, defendant alleged he did not hear

Wolcott radio his sergeant but did hear other comments Wolcott made. He 

maintained there was no other state trooper with him in the patrol vehicle while 

Wolcott was conducting the search. When asked if he objected to the search, 

defendant stated: 

I mean I couldn't object. I was arrested – well, detained, 

whatever they call it. And I was in the car with the 

windows up. So there was no way of me objecting until 
8

A-5872-17T4

after when I got back to the precinct he asked me to sign 

the consent. 

And I told him no.

 . . . . 

Because a supervisor never came and gave the okay for 

a warrant.

While cross-examining defendant, the State replayed a portion of the MVR 

video showing defendant's purported consent to the search.

The judge entered an order denying defendant's motion to suppress

accompanied with a five-page written decision. The judge determined Wolcott 

had reasonable and articulable suspicion to pull defendant's car over because he 

was exceeding the speed limit. When Wolcott walked up to the car's driver's 

side, he smelled burnt marijuana emanating from inside the car. Defendant and 

his two passengers were ordered out of the car and detained in handcuffs.

"Based on the MVR and credibility determinations," the judge decided 

defendant gave knowing and voluntary consent to Wolcott's search. 

Commenting on Wolcott's testimony, the judge found that after Wolcott read the 

consent-to-search form to defendant twice, defendant shrugged his shoulders, 

gave an affirmative nod, and said "sure." The judge found defendant's statement 

unintelligible on the MVR video, but found "Wolcott's version more credible 
9

A-5872-17T4

under the totality of the circumstances." The judge indicated the fact defendant 

remained silent when Wolcott confirmed consent to search over the radio, 

weighed in favor of Wolcott's testimony.

During the search, the judge determined defendant was in the backseat of 

Walsh's patrol car with Walsh in the front seat. The judge found defendant's 

testimony that Walsh was not in the car with him during the search was not 

credible based upon Wolcott's testimony and the MVR video showed "the 

shadow of the backup patrol officer [(Walsh)] . . . exiting . . . Wolcott's car 

following the search." The judge determined Wolcott found "a partially smoked 

marijuana cigarette and ninety-three (93) suspected fraudulent credit cards."

1

inside defendant's car.

B. Trial

The same judge who decided defendant's motion to suppress presided over 

the trial. The State presented the testimony of Wolcott and New Jersey State 

Police Detective Kenneth Hoppe. Defendant neither testified nor presented any 

witnesses.

1

 Throughout the suppression motion and trial testimony and the judge's ruling, 

the cards seized in the search were referred to as "credit cards," "gift cards,"

"bank cards," or "debit cards." For the sake of convenience, unless specified 

otherwise, we will use the generic term of "credit card." 
10 A-5872-17T4

Wolcott's testimony mirrored his suppression hearing testimony. He did, 

however, provide greater detail regarding the passengers in defendant's vehicle 

and the alleged contraband recovered during the car's search. He recalled the 

two passengers were Tavia Barnett, who was in the front passenger's seat, and 

Etienne, who was in the back seat directly behind Barnett. In his search, Wolcott 

found: (1) approximately .03 grams of marijuana in a partially smoked cigarette 

placed in a half-empty soda bottle in the center console; (2) four credit cards in 

the center console; (3) cigarette rolling papers and a credit card on Etienne's 

person; (4) four credit cards in the glove box; (5) one Visa gift card on 

defendant's person; (6) two credit cards in a handbag on the front passenger's 

floorboard; (7) two credit cards on the front passenger's seat; and (8) eighty-two

credit, debit, and gift cards forming a rectangular brick of two organized stacks 

compressed in a McDonald's bag that was then placed in a plastic bag situated 

next to the handbag in the front passenger's floorboard.

Hoppe related his experience in investigating financial crimes, such as 

credit card fraud. He testified to the contents of his report which detailed the 

results of running eighty-three cards recovered by Wolcott's search through a 

Magtek Pin 201004008 Card Reader. Hoppe described the device as:

[A] card reader[,] which was obtained from American 

Express to assist with credit card investigations by the 
11 A-5872-17T4

State Police[,] and it is used to capture and record the 

information that's encoded on the magnetic strip on the 

back of credit cards and gift cards. . . . It attaches to a 

computer, records to a text file or Excel or a spreadsheet 

and you just run the card just the same as it would be 

run, you know, during the normal course of use. 

He explained that by running a card through the mag reader, if it returned "a 

number encoded on the magnetic strip . . . consistent with the number printed 

on the face of the gift card" the card was legitimate. He testified after running 

each seized card through the mag reader, he determined most were fraudulent. 

When pressed on cross-examination, Hoppe stated, "[t]here were 

numerous [cards] that were, at face value, fraudulent. Some of them you would 

probably have to subpoena further information to know for sure." 2 However, on 

redirect, Hoppe testified, based on his report, he believed with some level of 

support, primarily because the information on the mag strips of each card did 

not match the information on the front of the card, that sixty-three of the 

confiscated cards from the McDonald's bag and the glove box were fraudulent.

At the conclusion of the State's case, defendant moved for a judgment of 

acquittal as to the conspiracy charge. He argued the State presented "no 

evidence of an agreement either through direct or circumstantial evidence . . . to 

2

 Based upon the contentions on appeal, it is unnecessary to address the exact 

information about each card. 
12 A-5872-17T4

show a conspiracy." The State opposed, contending that given defendant and 

his passengers were in a rental car with a large amount of credit cards located in 

several places in the car, the jury could infer defendant "was aware that they 

were in the car," had control over them, and he was part of the conspiracy or an 

accomplice for using them. Giving the State the benefit "of all its favorable 

testimony as well as favorable inferences which reasonably could be drawn 

therefrom," State v. Reyes, 50 N.J. 454, 459 (1967), the judge denied the motion. 

On the record, the judge noted the State established defendant was driving a 

rental car with two passengers and a large amount of fraudulent credit cards 

found inside, and a reasonable jury could determine "the vehicle was rented to 

obtain or later use the credit cards." The judge also held a reasonable jury could 

find defendant had agreed with the other passengers to obtain or use the credit 

cards.

As mentioned, the jury found defendant guilty of conspiracy to engage in 

the fraudulent use of credit cards. Defendant was sentenced to two years of 

probation, transferable to New York.

II.

Defendant contends the judge erred in denying his motion to suppress the 

seizure of the credit cards. His challenge intertwines three issues: (1) whether 
13 A-5872-17T4

he gave consent to search the vehicle; (2) whether he had the ability to stop the 

search; and (3) whether his consent was voluntarily given or coerced. The State 

does not address every argument put forth by defendant and instead makes two 

opposing arguments: (1) the evidence relied on by defendant is not reviewable 

because it is not in the record; and (2) even if the MVR video was viewed, the 

judge had "ample support . . . [for his] finding that defendant knowingly and 

voluntarily consented to the search of the rented motor vehicle . . . ." The State 

does not address whether there was probable cause to search defendant's car 

based upon the odor of burnt marijuana.3

Before we separately address each issue raised by defendant, we briefly 

discuss some overriding principles. The United States Constitution and the New 

Jersey Constitution both guarantee the right of persons to be free from 

unreasonable searches and seizure in their home. U.S. Const. amend. IV; N.J. 

3

 Pursuant to State v. Witt, 223 N.J. 409 (2015), police officers may conduct a 

warrantless, nonconsensual search during a lawful roadside stop "in situations 

where: (1) the police have probable cause to believe the vehicle contains 

evidence of a criminal offense; and (2) the circumstances giving rise to probable 

cause are unforeseeable and spontaneous." State v. Rodriguez, 459 N.J. Super. 

13, 22 (App. Div. 2019) (citing Witt, 223 N.J. at 447-48). "New Jersey courts 

have [long] recognized that the smell of marijuana itself constitutes probable 

cause that a criminal offense ha[s] been committed and that additional 

contraband might be present." State v. Walker, 213 N.J. 281, 290 (2013) 

(internal quotation marks omitted) (quoting State v. Nishina, 175 N.J. 502, 515-

16 (2003)).
14 A-5872-17T4

Const. art. I, ¶ 7. Warrantless searches are presumptively unreasonable unless, 

among other exceptions, voluntary consent to the search, without coercion or 

duress, is provided. State v. Domicz, 188 N.J. 285, 308 (2006); see also State 

v. Bryant, 227 N.J. 60, 69 (2016). 

An "essential element" of such consent is the individual's "knowledge of 

the right to refuse [it]." State v. Johnson, 68 N.J. 349, 353-54 (1975). Whether 

spoken or written, such "assent . . . is meaningless unless the consenting party 

understood his or her right to refuse" to give it. State v. Suazo, 133 N.J. 315, 

323 (1993) (citing Johnson, 68 N.J. at 353-54). A person has the right to 

withdraw consent to search at any time by being present during the search, and 

failure to afford the person the opportunity to exercise such right will result in 

suppression of the search. See State v. Hampton, 333 N.J. Super 19, 30 (App. 

Div. 2000). Consent is generally a factual question, determined by an 

assessment of the totality of the circumstances. State v. Koedatich, 112 N.J. 

225, 264 (1988). However, trial courts must adhere to established legal 

principles in evaluating those circumstances.

A. Proof of Consent

Defendant contends the judge erred both in his factual findings and 

application of the law when holding defendant gave consent to search his car. 
15 A-5872-17T4

With respect to the judge's factual findings, defendant contends he did not give 

"express and unequivocal consent to search his rental car . . . when he shrugged 

his shoulders after he was read the consent-to-search form for the second 

time[,]" as required by State v. Sugar, 100 N.J. 214, 233-35 (1985) (holding, 

inter alia, consent to must be "unequivocal"). Because the judge based his 

findings on the testimony of Wolcott and defendant, as well as viewing portions 

of the MVR video, his findings were influenced by his "opportunity to hear and 

see the witnesses," State v. Gamble, 218 N.J. 412, 424-25 (2014) (citation and 

internal quotation marks omitted), and we see no reason to disturb them because 

they were not "so clearly mistaken that the interests of justice demand 

intervention and correction," State v. Robinson, 200 N.J. 1, 15 (2009) (citation 

and internal quotation marks omitted). See State v. Elders, 192 N.J. 224, 244-

45 (2007) (holding while an appellate court may view the same video as the trial 

court, the appellate court may not substitute its evaluation of the video 

particularly where the trial court's determination on the motion is also based on 

the judge's opportunity to hear and consider live testimony).

B. Ability to Withdraw Consent

Defendant seeks to discredit Wolcott's testimony that he had the 

opportunity to withdraw consent to search or stop the search of his vehicle. In 
16 A-5872-17T4

support, defendant points out Walcott's assertion that Walsh was with defendant 

inside Walsh's patrol car when Wolcott was searching his car is contradicted at 

the twelve-minute time frame of the MVR video where Walsh appears to be a 

head-shaped shadow standing outside of the patrol car.

Defendant, however, fails to point out this contention was not raised 

before the judge because this portion of the video during the suppression hearing

was not viewed based on the parties' mutual agreement. Since the judge did not 

view this portion of the video in reaching his decision, we decline to do so. See

Robinson, 200 N.J. at 20 (holding "appellate courts will decline to consider 

questions or issues not properly presented to the trial court when an opportunity 

for such a presentation is available unless the questions so raised on appeal go 

to the jurisdiction of the trial court or concern matters of great public interest" )

(quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). 

Nonetheless, even accepting defendant's representations, that portion of 

the video is not instructive in determining the outcome of the suppression motion

such that "the interests of justice demand intervention and correction" to allow 

its consideration. Elders, 192 N.J. at 243. At best for defendant, the video

arguably shows Wolcott may not have known Walsh's every whereabouts while 

Wolcott searched the car. At worst for defendant, the video arguably shows
17 A-5872-17T4

based on the shadow's location, Walsh could have been standing right next to 

the window where defendant was seated in the patrol car and in close enough 

proximity to allow defendant to waive, tap the window, or call out to get his 

attention. More importantly, the judge found defendant's own testimony about 

the whereabouts of Walsh during Walcott's search inaccurate. The judge 

identified, by way of shadows, that an admitted portion of the MVR video shows 

Walsh exiting the vehicle at the conclusion of the search.

In sum, we discern no basis in the record provided to take issue with the 

judge's factual findings that defendant gave consent to Wolcott to search his car. 

C. Voluntariness of Consent

Defendant argues he did not provide voluntary consent to the search 

either orally or on the forms presented to him while he was already arrested and 

in handcuffs. Defendant maintains the trial judge incorrectly deemed the 

searches to be consensual, and the circumstances that produced his supposed 

consent were inherently coercive. We agree.

In its seminal opinion State v. King, 44 N.J. 346 (1965), our Supreme 

Court articulated a multi-prong test to guide our courts as to whether a person's 

consent for police to search a dwelling after a motor vehicle stop without a 

warrant was voluntary. Five decades later, the Court made clear in State v. 
18 A-5872-17T4

Hagans 233 N.J. 30, 39-43 (2018), the King factors must be considered when 

there is a question as to whether consent was voluntarily given to search a motor 

vehicle. The following five "King factors" weigh against voluntariness, and 

tend to show that a person's consent was coerced:

(1) that consent was made by an individual already 

arrested; (2) that consent was obtained despite a denial 

of guilt; (3) that consent was obtained only after the 

accused had refused initial requests for consent to 

search; (4) that consent was given where the subsequent 

search resulted in a seizure of contraband which the 

accused must have known would be discovered; and (5) 

that consent was given while the defendant was 

handcuffed. 

[Id. at 352-53.]

Additionally, King delineated three offsetting factors that can weigh in 

favor of a finding of voluntariness. Those offsetting factors are whether: "(1) 

consent was given where the accused had reason to believe that the police would 

find no contraband; (2) defendant admitted his guilt before consent; (3) 

defendant affirmatively assisted the police officers." Id. at 353.

The Court in King explained that the "existence or absence of one or more 

of the above factors is not determinative of the [voluntariness] issue." Ibid.

Because the factors "are only guideposts to aid a trial judge in arriving at his 

conclusion," a trial judge should determine the issue of voluntary consent by 
19 A-5872-17T4

considering "the totality of the particular circumstances of the case before him." 

Ibid.; see also Hagans, 233 N.J. at 42-43 (reiterating the King factors should not 

be applied mechanically because the totality of circumstances dictates the 

outcome). Ultimately, the Court concluded in King, that "the trial judge is in a 

better position to weigh the significance of the pertinent factors than is an 

appellate tribunal." Ibid. (emphasis added). 

Here, the judge's written opinion upholding the search of defendant's car 

on consent grounds failed to address the King factors. Consequently, we remand 

this matter for the judge to reevaluate whether Wolcott had sufficient lawful 

grounds at the time of the motor vehicle stop based upon defendant's consent to 

search his car. If the judge finds such a lawful basis lacking, he shall issue 

appropriate relief, subject to the State's right of appeal. Conversely, if the judge 

rules the consent valid, defendant may file a new appeal from that determination. 

III.

Finally, we turn to defendant's contention the judge erred in denying his 

motion for a judgment of acquittal under Rule 3:18-1. The long-established 

standard to determine a motion for a judgment of acquittal at the conclusion of 

the State's case was articulated in Reyes:

[T]he question the trial judge must determine is 

whether, viewing the State's evidence in its entirety, be 
20 A-5872-17T4

that evidence direct or circumstantial, and giving the 

State the benefit of all its favorable testimony as well 

as all of the favorable inferences which reasonably 

could be drawn therefrom, a reasonable jury could find

guilt of the charge beyond a reasonable doubt.

[50 N.J. at 458-59 (citing State v. Fiorello, 36 N.J. 80, 

90-91 (1961)).]

Under Rule 3:18-1, the judge "'is not concerned with the worth, nature or 

extent (beyond a scintilla) of the evidence, but only with its existence, viewed 

most favorably to the State.'" State v. Papasavvas, 170 N.J. 462, 521 (2002) 

(quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974)). "If the 

evidence satisfies that standard, the motion must be denied." State v. Spivey, 

179 N.J. 229, 236 (2004). We adhere to the same standard. R. 2:10-1 ("The 

trial court's ruling on such a motion shall not be reversed unless it clearly 

appears that there was a miscarriage of justice under the law."); see also State v. 

Kittrell, 145 N.J. 112, 130 (1996).

Applying these well-established principles to defendant's conviction of 

conspiracy to engage in the fraudulent use of credit cards, we discern no basis 

to set aside the jury's verdict.

Under N.J.S.A. 2C:21-6(h), the crime of fraudulent use of credit cards is 

defined as:
21 A-5872-17T4

A person who knowingly uses any counterfeit, 

fictitious, altered, forged, lost, stolen or fraudulently 

obtained credit card to obtain money, goods or services, 

or anything else of value; or who, with unlawful or 

fraudulent intent, furnishes, acquires, or uses any actual 

or fictitious credit card, whether alone or together with 

names of credit cardholders, or other information 

pertaining to a credit card account in any form, is guilty 

of a crime of the third degree.

To convict defendant of conspiracy to commit this crime, the State had to 

satisfy N.J.S.A. 2C:5-2(a), which provides in pertinent part, that: 

[a] person is guilty of conspiracy with another person 

or persons to commit a crime if with the purpose of 

promoting or facilitating its commission he:

(1) Agrees with such other person or persons that they 

or one or more of them will engage in conduct which 

constitutes such crime or an attempt or solicitation to 

commit such crime; or

(2) Agrees to aid such other person or persons in the 

planning or commission of such crime or of an attempt 

or solicitation to commit such crime.

"[T]he agreement to commit a specific crime is at the heart of a conspiracy 

charge." State v. Samuels, 189 N.J. 236, 245 (2007). It is well settled that a 

conspiracy may be proven by circumstantial evidence. State v. Phelps, 96 N.J. 

500, 509 (1984). Generally, circumstantial evidence is tested

by the rules of ordinary reasoning such as govern 

mankind in the ordinary affairs of life. While certain 

actions of each of the defendants, when separated from 
22 A-5872-17T4

the main circumstances and the rest of the case, may 

appear innocent, that is not significant and undoubtedly 

appears in every case of criminal conspiracy. 

[Samuels, 189 N.J. at 246 (quoting State v. Graziani, 60 

N.J. Super. 1, 13-14 (App. Div. 1959)).]

Hence, "[a]n implicit or tacit agreement may be inferred from the facts and 

circumstances[,]" State v. Kamienski, 254 N.J. Super. 75, 94 (App. Div. 1992), 

because co-conspirators generally act in silence and secrecy, State v. Cagno, 211 

N.J. 488, 512 (2013). 

Defendant contends, as he did before the trial judge, the State failed to 

prove "there was . . . evidence of an agreement among the three occupants of the 

[rental car] . . . to conspire to fraudulently use any credit cards." He asserts the 

"mere presence of others in the car" is not enough to prove there was a 

conspiracy. Defendant contends the presence of the credit cards in a bag owned 

by someone else, located next to the feet of Barnett, within her complete and 

sole control, does not establish he possessed the credit cards to prove he 

conspired to use them. He further submits the judge's determination the vehicle 

was rented with the "purpose of obtaining the fraudulent credit cards appears to 

have been [a] mistake[]" because the State did not present evidence it had been 

rented or when the rental period had started. Defendant points out he was pulled 

over nineteen days after he rented the vehicle, which was six days past the initial 
23 A-5872-17T4

return date, instead of renting it the same day the credit cards were found in the 

vehicle. Thus, he argues, the State did not show the rental was "with specific 

purpose of traveling to obtain [and or] use the fraudulent credit cards." 

Defendant compares his situation to that of the defendants in State v. 

Shipp, 216 N.J. Super. 662 (App. Div. 1987) and State v. Lewis, 93 N.J. Super. 

212 (App. Div. 1966), whose convictions were reversed because the State failed 

to prove possessory offenses. In Shipp, we held the State failed to prove 

defendant possessed controlled dangerous substances with intent to distribute

where he was a passenger in a car and his stepmother, another passenger, tried 

to inconspicuously drop several sealed business envelopes containing heroin 

through the grate of a storm drain while the police were questioning the others. 

216 N.J. Super. at 663-64. We reasoned the defendant's simple presence in the 

vehicle with his stepmother "did not suffice to authorize an inference that he 

was sharing in the intentional control and dominion over the contraband 

material." Id. at 666. 

In Lewis, which was cited for support in Shipp, we reversed the 

defendant's conviction for unlawful possession of a gun found in a jacket – not 

owned by the defendant – in the front seat of a vehicle in which defendant was 

one of seven occupants and sitting in the back seat. 93 N.J. at 213-14.
24 A-5872-17T4

Defendant asserts that like in Shipp and Lewis, the State's failure to 

establish more than mere presence in the vehicle with a passenger who 

controlled the fraudulent credit cards required an entry of acquittal. Defendant 

attempts to minimize the one fraudulent credit card found in the glove box 

alongside three non-fraudulent cards by stating "there was no evidence . . . [he] 

kept anything in that glove box, which was located immediately in front of 

Barnett."

We are unpersuaded by defendant's arguments. As the State points out,

our Supreme Court's reasoning in State v. Palacio, 111 N.J. 543 (1988), 

undercuts defendant's reliance on Shipp. In Palacio, a driver and the defendant 

passenger were stopped for speeding and, after obtaining written consent from 

the driver to search the vehicle, a secreted compartment behind the back seat 

revealed fifteen pounds of cocaine. 111 N.J. at 458. The defendant was found 

guilty of possession with intent to distribute. Ibid. The Court rejected the 

defendant's argument that Shipp required a reversal of his conviction because: 

(1) the contraband was found in an open area where another occupant had 

access; (2) there was evidence supporting a conspiracy; and (3) the quantity of 

contraband was substantially larger than the few envelops of heroin and of 

greater value than found in Shipp. Id. at 551-53.
25 A-5872-17T4

Giving the State the "benefit of all its favorable testimony as well as 

favorable inferences which reasonably could be drawn therefrom[,]" Reyes, 50 

N.J. at 459, the situation here is akin to Palacio, where the amount of contraband 

and the accessibility of the contraband sustained the defendant's conviction. The 

fraudulent credit cards were scattered across the car: in the center console, in 

the glove box, on the seats, and in the McDonald's bag, without any indicia that 

it was owned or possessed by any particular person in the car. The cards were 

not on the persons of defendant's passengers, nor secreted in items the

passengers had complete and sole control over; they were all accessible to 

defendant. Defendant's presence in a car he rented with so many fraudulent

credit cards scattered therein is enough for a reasonable jury to conclude an 

agreement existed between the occupants to obtain and/or use the fraudulent 

cards as required under N.J.S.A. 2C:5-2(a). 

Furthermore, and perhaps more importantly, defendant was found guilty 

of conspiracy to use fraudulent credit cards, not possession of fraudulent credit 

cards. The fact there were so many such cards found in a vehicle he rented and 

was driving establishes circumstantial evidence that a reasonable jury could 

apply to find him guilty of conspiracy to use them. Hence, the judge properly 

denied defendant's motion for a judgment of acquittal. 
26 A-5872-17T4

Affirmed in part and reversed and remanded in part. We do not retain 

jurisdiction.