crime of bribery, Penta, however, has been overruled by
the third paragraph of the bribery statute, N.J.S.A.
2C:27-2, which provides that “[i]t is no defense to
prosecution under this section that a person whom the
actor sought to influence was not yet qualified to act in
the desired way ... because he had not yet assumed office
...”
In State v. Rockholt, 186 N.J. Super. 539, 547-48
(App. Div. 1982), aff’d, 96 N.J. 570 (1984), the
defendant argued that Penta was still good law and that,
on its authority, his conviction for official misconduct
should be reversed. However, the Appellate Division
concluded that Penta was inapplicable, since the
defendant, who was allegedly unable to function as a
“public servant” by reason of drug addiction and
alcoholism, nevertheless had been sworn into office prior
to his misconduct and remained continuously in office
until he resigned after the offenses were committed.
The question also occasionally arises whether a
government contractor is a “public servant.” In State v.
Williams, 189 N.J. Super. 61 (App. Div.), certif. denied,
94 N.J. 543 (1983), the Appellate Division held that the
defendant, who was the operative head of an independent
social service agency which received government funding
for some of the projects in which it was involved, was not
a “public officer” within the meaning of the pre-Code
common law crime which proscribed misconduct in
office by a “public officer.” In a footnote the court noted
that the contemporary statute, N.J.S.A. 2C:30-2,
proscribing misconduct by a “public servant,” was of no
assistance to their determination, which involved a pre-
Code crime. Id. at 66 n.2. Because N.J.S.A. 2C:30-2
adopts the definition of “public servant” set forth in
N.J.S.A. 2C:27-1g, it apparently follows that State v.
Williams is not relevant to construing this definition.
Note that in State v. Vickery, 275 N.J. Super. 648,
650-55 (Law Div. 1994), the trial court rejected
defendant’s assertion that based on his status as a member
of the Society for the Prevention of Cruelty to Animals
(S.P.C.A.) he was not a “public servant” within the
meaning of N.J.S.A. 2C:27-1g and thus immune from
prosecution for official misconduct. The trial court based
its conclusion on various numerous statutory provisions
which confer upon S.P.C.A. members authority similar
to that exercised by police and law enforcement
personnel, and which are not enjoyed by ordinary
citizens.
C. Mens ReaOne of the purposes of this section is to clarify and
simplify the considerable pre-Code confusion as to the
requisite mens rea necessary for a conviction of the pre-
Code crime of misconduct in office. See, e.g., State v.
Weleck, 10 N.J. 355, 365-366 (1952) (mere unlawful
behavior in relation to official duties suffices to establish
the crime); State v. Winne, 12 N.J. 152, 175-177 (1953)
(State must prove wilfullness or bad faith for nonfeasance
and corruption for malfeasance); State v. Williamson, 31
N.J. 16, 22 (Weintraub, C.J., concurring) (1959); State
v. Begyn, 34 N.J. 35, 50 (1961) (evil motive or bad faith);
State v. Schultz, 71 N.J. 590, 601-602 (1976)
(indictment should preferably assert that the public
officer acted with evil motive or in bad faith and not
honestly); Makwinski v. State, 76 N.J. 87, 92 (1978)
(“[c]orrupt motive or intent (mens rea) is not an essential
element of the offense”); State v. Tirelli, 208 N.J. Super.
628 (App. Div. 1986).Under the Code, the State must prove two mens rea.
First, in all cases, the State must prove that the public
servant acted “with purpose to obtain a benefit for himself
or another or to injure or to deprive another of a benefit.”
N.J.S.A. 2C:30-2; II Final Report of the New Jersey
Criminal Law Revision Commission, “Commentary”
(1971) at 291.The second element of mens rea depends upon
whether the State is proceeding under subsection (a) or
subsection (b). Of course, the question as to which
subsection applies hinges upon the substantive facts
alleged in the indictment, and not upon the indictment’s
draftsmanship. State v. Wiliamson, 54 N.J. Super. at- If subsection (a) applies, then the State must prove
that the defendant public officer knew that the act which
he committed was unauthorized, or that he was
committing the act in an unauthorized manner.
Commentary, supra at 291.
In State v. Grimes, 235 N.J. Super. 75 (App. Div.
1989), the Appellate Division recognized that official
misconduct is one of the very few crimes where ignorance
of the law can be interposed as a viable defense because a
public servant may be found guilty of official misconduct
under N.J.S.A. 2C:30-2a only if he knows his act, relating
to his office, is unauthorized or committed in an
unauthorized manner.If subsection (b) applies, then the State must prove
that the defendant public servant “knowingly” refrained
from performing a duty. “[T]he public servant must