cdTOCtest

In State v. Damiano, supra, 322 N.J. Super. at 52-53,
this section was held not to apply to a nearly bankrupt car
dealer, apparently not involved in organized crime, who
was prosecuted under this section for failure to remit sales
tax he collected and other deceptive business practices.
The court held that the statute contemplates conscious
use of a corporation for illegal purposes. Id. at 55.
Therefore, the statute did not encompass the defendant’s
actions in failing to deliver cars free of liens, failing to
acquire extended warranties bought by customers, and
failing to pay sales tax withheld, because they were not
part of an intentional scheme to use the dealership to
extort money. Id.

XVI. COMMERCIAL BRIBERY AND BREACH

OF DUTY TO ACT DISINTERESTEDLY

This section extends the scope of pre-Code
legislation dealing with commercial bribery and creates
three separate offenses.

A. Breach of Duty of Fidelity

It is an offense to solicit, accept or agree to accept any
benefit as consideration for knowingly violating or
agreeing to violate a duty of fidelity to which he is subject
as:

1. an agent, partner or employee of another;


2. a trustee, guardian, or other fiduciary;


3. a lawyer, physician, accountant, appraiser, or
   other professional adviser or informant;


4. an officer, director, manager, or other participant
   in the direction of the affairs of an incorporated or
   unincorporated association;


5. a labor official, including any duly appointed
   representative of a labor organization or any duly
   appointed trustee or representative of an employee
   welfare trust fund; or


6. an arbitrator or other purportedly disinterested
   adjudicator or referee. N.J.S.A. 2C:21-10a.

The culpability for this offense requires a conscious
disregard of a known duty of fidelity. Id. There is no
breach of a duty of fidelity if the principal knows about
a gift to an employee and acquiesces in the gift. See Jaclyn,

Inc. v. Edison Brothers Stores, Inc., 170 N.J. Super. 335,

357 (Law Div. 1979).

B. Breach of Duty to Act Disinterestedly

A person who holds himself out to the public as being

engaged in the business of making disinterested

selection, appraisal, or criticism of commodities, real

properties or services commits a crime if he solicits,

accepts or agrees to accept any benefit to influence his

selection, appraisal or criticism. N.J.S.A. 2C:21-10b.

The benefit’s acceptance must be in consideration of

influencing the defendant’s selection, appraisal or

criticism. Also, the defendant must be acting with a

purpose to have his decision affected. See Model Penal

Code and Commentaries § 224.8, p.336 (1980).

C. Conferring, Offering or Agreeing To Confer a Benefit

It is a crime to confer, offer, or agree to confer any

benefit, the acceptance of which would be criminal under

subsection a or b of this section. N.J.S.A. 2C:23-10c.

D. Grading

If the benefit offered, conferred, agreed to be

conferred, solicited, accepted or agreed to be accepted in

violation of this section is $75,000 or more, the crime is

of the second degree. N.J.S.A. 2C:21-10. If the benefit

is more than $1,000 but less than $75,000, the crime is

of the third degree. Id. If the benefit is less than $1,000,

the crime is of the fourth degree. Id.

XVII. RIGGING PUBLICLY EXHIBITED

CONTEST

The Code has expanded the pre-existing law

regarding the commission of bribery or tampering with

publicly exhibited contests. The offense now includes

tampering and applies not only to sporting events but all

publicly exhibited contests. N.J.S.A. 2C:21-11.

A. Bribery and Tampering

It is a crime for a person, with purpose to prevent a

publicly exhibited contest from being conducted in

accordance with the rules and usages which govern it, to

1. confer, offer or agree to confer any benefit upon, or
   threaten any injury to, a participant, official or other
   person associated with the contest or exhibition; or