cdTOCtest

one course of conduct involved in both of these offenses,
albeit that the tax offense requires an additional element.
Id. at 32-33.

MISCONDUCT IN OFFICEMISCONDUCT IN OFFICEMISCONDUCT IN OFFICEMISCONDUCT IN OFFICEMISCONDUCT IN OFFICE

(See also, BRIBERY and CORRUPT

INFLUENCES, this Digest)

I. OFFICIAL MISCONDUCT (N.J.S.A. 2C:30-2)

A. Elements

A public servant is guilty of official misconduct

when, with purpose to obtain a benefit for himself or

another or to injure or to deprive another of a benefit:

a. He commits an act relating to his office but

constituting an unauthorized exercise of his official

functions, knowing that such act is unauthorized or he is

committing such act in an unauthorized manner; or

b. He knowingly refrains from performing a duty

which is imposed upon him by law or is clearly inherent

in the nature of his office. (N.J.S.A. 2C:30-2.)

B. Definitions -- Public Servant, Benefit

The terms “public servant” and “benefit” are defined

in N.J.S.A. 2C:27-1. The Code defines “public servant”

as an officer or employee of government, including

legislators and judges, and any person participating as

juror, advisor, consultant or otherwise, in performing a

governmental function excluding witnesses. N.J.S.A.

2C:27-1g. The term “benefit” is defined as gain or

advantage, including a pecuniary benefit or a benefit to

any other person or entity in whose welfare he is

interested. N.J.S.A. 2C:27-1a.

In State v. Bullock, 136 N.J. 149, 154-55 (1994), the

Supreme Court of New Jersey concluded that a state

trooper who engaged in misconduct while suspending

from active duty nonetheless remained a public servant

subject to prosecution for official misconduct. The Court

reasoned that suspension is merely a temporary condition

and that suspended police officers remain subject to

department rules during their period of suspension.

The question may arise whether a person who has

been elected to an office, but who has not yet taken his

oath of office, is a “public servant” for the purposes of this

section. In State v. Penta, 127 N.J. Super. 201 (Law Div.

1974), certif. denied, 68 N.J. 166 (1975), the court held

that a councilman who has been elected to office, but who

has not yet assumed his official position, is not an “officer”

within the intention of pre-Code statutes proscribing

bribery and misconduct in office; hence, he may not be

charged with these offenses. With respect to the Code