corporate acts as well as separate individual criminal acts.
For example, in State v. Paone, 290 N.J. Super. 494 (App.
Div. 1996), defendant, a corporate president convicted
of failing to remit unemployment insurance contribu-
tions, was required to pay restitution regardless of
whether he received pecuniary gain himself. The New
Jersey Legislature intended that corporate officers who
criminally defraud public trust funds be required to make
good the loss. Id. at 495-96. See also Lady J. Lingerie, Inc.
v. City of Jacksonville, 176 F.3d 1358, 1367 (11th Cir.
1999) (owners can be personally liable for criminal acts
of corporation).
To be liable for a corporate wrong, an agent must
have been personally responsible by act or authority for
the wrong and must have the requisite criminal intent.
State v. Damiano, 322 N.J. Super. 22 (App. Div. 1999),
certif. denied,, 163 N.J. 396 (2000); State v. Pincus, 41
N.J. Super. 454 (App. Div. 1956) (“It is well settled that
a corporate officer or agent may be criminally liable for his
own acts, although done in his official capacity, if he
participates in the unlawful act, either directly, or as
aider, abettor or accessory.”); 19 C.J.S. §§ 552; 553
(1990).
An agent need not have been acting in a
representative capacity to be liable. United States v. Wise,
370 U.S. at 416. Indeed, an agent may be found guilty
of the very same wrong of which the corporation was
acquitted. United States v. Dotterweich, 320 U.S. 277
(1943).
By virtue of their positions within a corporation,
agents may be liable for various individual crimes,
separate and apart from any corporate wrongs. For
example, an agent may be held liable for “Misconduct by
Corporate Official” under N.J.S.A. 2C:21-9. That
statute provides that a director commits misconduct
when, knowingly, with purpose to defraud, the director
unlawfully pays a dividend or capital stock or buys
corporate stock on behalf of the corporation, receives
evidence of debt for capital stock actually called in and
required to be paid or receives evidence of debt to enable
a stockholder to withdraw money paid on stock. N.J.S.A.
2C:21-9a. Additionally, a director or officer commits
misconduct when, with purpose to defraud, he or she
issues an increase in capital stock beyond the amount of
capital stock or unlawfully sells shares. N.J.S.A. 2C:21-
9b. Finally, it is a crime when any person “knowingly or
purposely uses, controls or operates a corporation for the
furtherance of any criminal object.” N.J.S.A. 2C:21-9c.
If the benefit derived is in excess of $75,000, it is a crime
of the second degree, if the benefit derived is between
$1,000 and $75,000, it is a crime of the third degree and
if the benefit derived is less than $1,000, then it is a crime
of the fourth degree.An agent also may be liable for embezzlement and
other theft related crimes. See N.J.S.A. 2C:20-2, 20-4,
20-9; N.J.S.A. 2C:21-1 et seq. For example, in State v.
Manthey, 295 N.J. Super. 26 (App. Div. 1996),
defendant failed to remit sales and withholding taxes and
was indicted for theft, N.J.S.A. 2C:20-9, misapplication
of entrusted property, N.J.S.A. 2C:21-15 and failure to
pay or turn over taxes, N.J.S.A. 54:52-9. In State v. Paone,
290 N.J. Super. 494 (App. Div. 1996), the corporate
president was convicted of failing to remit unemploy-
ment insurance contributions. He was required to pay
restitution regardless of whether he received any
pecuniary gain himself. See also State v. Daly, 38 N.J. 1
(1962) (embezzlement); State v. Palumbo 137 N.J. Super.
13 (App. Div. 1975) (embezzlement); State v. Telek, 90
N.J. Super. 61 (App. Div. 1966) (theft of documents
containing trade secrets); State v. Cronin, 86 N.J. Super.
367 (App. Div. 1965) (false entries in sales invoices with
purpose to defraud insurance company and others); State
v. Pincus, 41 N.J. Super. 454 (App. Div. 1956)
(defendant criminally liable for criminal act done in
obtaining trade acceptance upon false representation).III. DEFENSES
There are defenses which can be raised regarding
corporate liability, in addition to defenses particular to
the crime in question. For example, N.J.S.A. 2C:2-7c
states that it is a defense to any charge brought under
N.J.S.A. 2C:2-7a(1) that a high managerial agent who
has supervisory responsibility over the subject matter of
the offense employed due diligence to prevent its
commission. See N.J.S.A. 2C:2-7b(3) for the definition
of a “high managerial agent.”A corporation may also contend that its agents were
acting to advance, not the interests of the corporation,
but their own personal interests. See N.J.S.A. 2C:2-
7a(1). See also United States v. One Parcel of Land Located
at 7326 Highway 45 North, Three Lakes, Oneida County,
Wis., 965 F.2d 311, 316 (7th Cir. 1992); United States
v. Cincotta, 689 F.2d 238 (1st Cir.), cert. denied, 103
S.Ct. 347 (1982); Standard Oil Co. of Texas v. United
States, 307 F.2d 120 (5th Cir. 1962). It can also be
argued that the act by an agent was unauthorized or ultra