cdTOCtest

actor, or coconspirators, or any person in whom the actor
is interested, whichever is greater, whether loss, gain or
advantage takes the form of money, property, commercial
interests or anything else the primary significance of
which is economic gain. N.J.S.A. 2C:21-8.1a.

B. Determination of Degree

The benefit derived or resulting harm in violation of
Chapter 21 shall be determined by the trier of fact.
N.J.S.A. 2C:21-8.1b. If such benefit or harm is related
to one scheme or course of conduct, it may be aggregated
in determining the degree of the offense, regardless of
whether it involved the same person or several persons.
Id.

For criminal liability for theft and sales tax offenses to
attach to individual acts or a course of conduct engaged
in by a businessman on the brink of insolvency, there
must be criminal intent and criminal culpability as
defined by criminal statutes. State v. Damiano, supra,
322 N.J. Super. at 36. Criminal liability cannot attach
simply because civil liability attaches. Id.

XV. MISCONDUCT BY CORPORATE OFFI-

CIAL

The Code criminalizes certain misconduct by
corporate officials. The degree of the offense is dependent
on the amount of benefit received. See N.J.S.A. 2C:21-
9c. The corporate official may be criminally liable even
if he is not the official who is receiving the benefit. The
fraud committed can be directed at the corporation, a
third person, Kugler v. Banner Pontiac-Buick Opel, Inc.,
supra, 120 N.J. Super. at 580, or the public. State v. Ware,
71 N.J.L. 53, 54 (Sup. Ct. 1904).

Under N.J.S.A. 2C:21-9a, it is a crime for a director
of a corporation to knowingly, with purpose to defraud,
concur in any vote or act of the directors of such
corporation, or any of them, which has the purpose of:

1. making a dividend except in the manner provided
   by law;


2. dividing, withdrawing or in any manner paying to
   any stockholder any part of the capital stock of the
   corporation except in the manner provided by law;


3. discounting or receiving any note or other evidence
   of debt in payment of an installment of capital stock

actually called in and required to be paid, or with purpose

of providing the means of making such payment;

4. receiving or discounting any note or other evidence
   of debt with purpose of enabling any stockholder to
   withdraw any part of the money paid in by him on his
   stock; or


5. applying any portion of the funds of such
   corporation, directly or indirectly, to the purchase of
   shares of its own stock, except in the manner provided by
   law.

Under N.J.S.A. 2C:21-9b, it is a crime for a director

or officer of a corporation, with purpose to defraud, to:

1. issue, participate in issuing, or concur in a vote to
   issue any increase of its capital stock beyond the amount
   of the capital stock thereof, duly authorized by or in
   pursuance of the law; or


2. sell, or agree to sell, or be directly interested in the
   sale of any share of stock of such corporation, or in any
   agreement to sell the same, unless at the time of such sale
   or agreement he is an actual owner of such share. The
   foregoing does not apply to a sale by or on behalf of an
   underwriter or dealer in connection with a bona fide
   public offering of shares of stock of such corporation. Id.

Under N.J.S.A. 2C:21-9c, it is a crime for a director

or officer of a corporation to purposely or knowingly use,

control or operate a corporation for the furtherance or

promotion of any criminal object.

If the benefit derived from a violation of this statute

is $75,000, the crime is of the second degree. If the

benefit exceeds $1,000, but is less than $75,000, the

crime is of the third degree. If the benefit derived is

$1,000 or less, the crime is of the fourth degree. Id.

Subsection a involves the dissipating of corporate

assets and is applicable only to directors of a corporation.

N.J.S.A. 2C:21-9a.

Subsection b involves the improper issuance or sale of

corporate stock and is applicable to both directors and

officers of a corporation. N.J.S.A. 2C:21-9b.

Subsection c is directed against organized crime and

the use of corporations to further criminal objectives.

N.J.S.A. 2C:21-9c; see also Cannel, supra, at N.J.S.A.

2C:21-9, comment 2.