Conway, 193 N.J. Super. 133, 159 (App. Div. 1984),
certif. denied, 97 N.J. 650 (1984).
C. Chain Conspiracy
In a “chain” conspiracy, “there is successive
communication and cooperation between A and B, B and
C, C and D, and so on.” New Jersey Penal Code, Volume
II: Commentary, Final Report of the New Jersey
Criminal Law Revision Commission, comment 13 on >
N.J.S.A. 2C:5-2 (1971). “Under the chain analysis, the
government need not prove a direct connection between
all the conspirators.” United States v. Tarantino, 846
F.2d 1384, 1392 (D.C. Cir. 1988), cert. denied, 488 U.S.
867, 109 S.Ct. 174, 102 L.Ed.2d 143 (1988). “[T]he
liability of members of the distribution chain is
predicated upon the notion that participants at different
levels in the chain know that the success of those at each
level hinges upon the success of the others and therefore
cooperate for their mutual benefit.” United States v.
Townsend, 924 F.2d 1385, 1391 (7th Cir.1991); see also
State v. Roldan, 314 N.J. Super. at 181; see generally,
Wayne R. LaFave and Austin W. Scott, Jr., 2 Substantive
Criminal Law, S 6.5d(2) (1986).
Such a drug distribution conspiracy falls outside of
the general rule that a simple agreement to buy drugs is
insufficient to establish a conspiracy between the seller
and the buyer. State v. Roldan, 314 N.J. Super. at 182.
The essential rationale of the general rule, commonly
referred to as Wharton’s rule, is that where an agreement
between two parties is inevitably incident to the
commission of a crime, such as a sale of contraband,
“conspiracy, which assumes the voluntary accession of a
person to a crime of such a character that it is aggravated
by a plurality of agents, cannot be maintained.” Id,
quoting Iannelli v. United States, 420 U.S. 770, 773, 95
S.Ct. 1284, 1288, 43 L.Ed.2d 616, 620 (1975).
However, when the evidence shows that two or more
parties have entered into an agreement to engage in
concerted criminal activity which goes beyond the kind
of simple agreement inevitably incident to the sale of
contraband and consequently “makes possible the
attainment of ends more complex than those which one
criminal could accomplish,” Iannelli v. United States,
420 U.S. at 778, 95 S.Ct. at 1290, 43 L.Ed.2d at 623,
the participants may be found guilty of conspiracy. State
v. Roldan, 314 N.J. Super. at 183.
Classic examples of Wharton’s rule offenses are:
dueling, bigamy, adultery, pandering, gambling, buying
and selling contraband goods, giving and receiving
bribes. State v. Roldan, 314 N.J. Super. at 182 n.2; LaFave
and Scott, supra, 2 Substantive Criminal Law S 6.5(g)(4).D. “Totality of Circumstances” Test....................................................................................................
In New Jersey Trade Waste Ass’n, 96 N.J. at 24, 25, the
Court adopted a “totality of the circumstances” test.
Under that test, each case is decided on a case-by-case
basis after examining all of the circumstances. Some of
the relevant factors are the degree of interdependance
needed for the overall plan to succeed, the extent to which
the conspiracies share a common objective, the time
period during which the acts took place, the location in
which the acts took place, similarity in methods of
operation and number of acts in common. Id.E. “Wishful Thinking”
The mere knowledge, acquiescence, or approval of
the substantive offense, without an agreement to
cooperate, is not enough to establish one as a participant
in a conspiracy. There must be intentional participation
in the activity with a goal of furthering the common
purpose; mere association is inadequate. Thus, wishful
thinking does not rise to the level of a conspiracy. Where
defendant’s girlfriend “wished” her husband were dead,
such evidence presented could not support a legitimate
belief that “with the purpose of promoting or facilitating
its commission,” N.J.S.A. 2C:5-2a, the girlfriend agreed
with defendant that defendant should shoot her husband
or agreed to aid defendant in planning or committing the
crime. Whatever wishes she may have harbored
concerning her husband’s death and whatever
discussions she may have had with defendant on that
subject, they never rose to the level of an agreement
between them. State v. Abrams, 256 N.J. Super. 390, 399
(App. Div. 1992).III. CONSPIRACIES WITH MULTIPLE OBJEC-
TIVES
N.J.S.A. 2C:5-2c (“Conspiracy with multiple
objective”) provides in pertinent part, “If a person
conspires to commit a number of crimes, he is guilty of
only one conspiracy so long as such multiple crimes are
the object of the same agreement or continuous
conspiratorial relationship.” “Whether the evidence in a
particular case establishes single or multiple conspiracies
is generally a question of fact to be resolved by the jury.”
State v. Ball, 268 N.J. Super. 72, 109 (App. Div. 1993),
aff’d, 141 N.J. 142 (1995).