which did not contain the explicit definition of “benefit
as consideration” which is now set forth in N.J.S.A.
2C:27-2. See I Final Report of the New Jersey Criminal Law
Revision Commission, “Report and Penal Code” (1971) at
- That is, the new definition of “benefit as
consideration,” namely, “any benefit not authorized by
law” may eviscerate the significance of the term
“consideration” and may, therefore, be construed also to
eviscerate those portions of the commentary which
discuss the term “consideration.” In any event, the
payment of gifts to public officials, with or without
“consideration,” is regulated and generally proscribed by
other provisions of the Code, e.g., N.J.S.A. 2C:27-4,
N.J.S.A. 2C:27-6. See discussion of these sections, infra.
4. Party official; public servant
The terms “party official” and “public servant” are
defined in N.J.S.A. 2C:27-1e and N.J.S.A. 2C:27-1g,
respectively. The term “public servant” is broadly
defined, and encompasses all officers and employees of
government, including legislators and judges, and any
person participating as a juror, advisor, consultant or
otherwise in performing a governmental function; but
the term does not include “witnesses,” since the crime of
tampering with a witness is separately dealt with in
N.J.S.A. 2C:28-5.
As the statute proscribes conferring a benefit “upon
another,” or agreeing to accept a benefit “from another,”
neither the offeror nor the recipient of the bribe needs to
be a public official to prove bribery. It is sufficient if the
recipient created the understanding that he could
influence matters in connection with an official duty,
whether or not he was capable of actually effecting such
a result. State v. Schenkolewski, 301 N.J. Super. at 138-
- This result is consistent with pre-Code law. See
State v. Ferro, 128 N.J. Super. 353 (App. Div. 1974),
certif. denied 65 N.J. 566 (1974).
C. Statutorily Proscribed Defenses
1. Inability of Bribee to Act
The third paragraph of N.J.S.A. 2C:27-2 provides:It is no defense to prosecution under this section that a
person whom the actor sought to influence was not
qualified to act in the desired way whether because he had
not yet assumed office, or lacked jurisdiction, or for any
other reason.
This provision generally codifies pre-Code law,
except that, with respect to the question whether the
offense may apply to an officer who has not yet assumed
office, this provision overrules pre-Code law. E.g., State
v. Ellis, 33 N.J.L. 102 (Sup. Ct. 1868); State v. Sherwin,
127 N.J. Super. 370. “It is not necessary that the act
requested be one which the official has authority to do.
Sufficient is it if he has official power, ability, or apparent
ability to bring about or contribute to the desired end.”
State v. Begyn, supra, 34 N.J. at 47-48 (emphasis added).
See also, discussions at I.B.1., and 4., supra.2. Extortion and Coercion
In any prosecution under this section of an actor who
offered, conferred or agreed to confer, or who solicited,
accepted or agreed to accept a benefit, it is no defense that
he did so as a result of conduct by another constituting
theft by extortion or coercion or an attempt to commit
either of these crimes. (N.J.S.A. 2C:27-2)This provision did not exist in pre-Code law. It was
adopted from the New York Code under the rationale
that such extortion must be reported to the authorities,
rather than be paid. II Final Report of the New Jersey
Criminal Law Revision Commission, “Commentary”
(1971) at 265.D. Evidential Questions
Evidence of sudden acquisition of money is
permissible. In State v. Smollok, 148 N.J. Super. 382
(App. Div. 1977), certif. denied 74 N.J. 274 (1977), the
State introduced evidence that the defendant had made
a number of large deposits in a personal checking account
during the period that he was alleged to have received
bribes. The court held that such evidence may properly
be admitted in a bribery prosecution.Multiple charges of bribery may properly be joined
for one trial if there is a common conspiratorial
relationship or common evidential strings. In State v.
Coruzzi, 189 N.J. Super. 273, 300-301 (App. Div.
1983), certif. denied 94 N.J. 531 (1983), the Appellate
Division held that the trial court did not err by failing to
sever charges of bribery and official misconduct which
arose from three criminal transactions because there was
a common conspiratorial relationship, and also because
the multiple acts of misconduct were important to the