                                NOT FOR PUBLICATION WITHOUT THE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.




                                                        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
      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

                                                                         A-5872-17T4
                                       2
             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.


                                                                      A-5872-17T4
                                          3
      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.




                                                                         A-5872-17T4
                                       4
      Seeking to search defendant's car, Wolcott testified he read the consent-

to-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-to-

search 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 consent-

to-search form a second time because he was seeking a clear yes or no answer

from defendant.


                                                                           A-5872-17T4
                                        5
      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


                                                                           A-5872-17T4
                                        6
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


                                                                         A-5872-17T4
                                        7
            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


                                                                        A-5872-17T4
                                       8
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."
                                                                        A-5872-17T4
                                       9
      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

                                                                          A-5872-17T4
                                       10
            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.
                                                                          A-5872-17T4
                                       11
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


                                                                          A-5872-17T4
                                        12
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)).
                                                                          A-5872-17T4
                                       13
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.


                                                                          A-5872-17T4
                                       14
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


                                                                         A-5872-17T4
                                      15
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


                                                                             A-5872-17T4
                                        16
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.


                                                                          A-5872-17T4
                                       17
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


                                                                         A-5872-17T4
                                       18
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

                                                                            A-5872-17T4
                                        19
              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:



                                                                           A-5872-17T4
                                        20
            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

                                                                         A-5872-17T4
                                       21
            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

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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.


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      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.


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                                      24
      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.


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                                       25
      Affirmed in part and reversed and remanded in part. We do not retain

jurisdiction.




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