ASSEMBLY, No. 2243

STATE OF NEW JERSEY

214th LEGISLATURE

 

INTRODUCED FEBRUARY 11, 2010

 


 

Sponsored by:

Assemblywoman  CHARLOTTE VANDERVALK

District 39 (Bergen)

 

 

 

 

SYNOPSIS

     Provides that an “attorney-in-fact” is a fiduciary for purposes of theft statutes.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning theft-related offenses and amending N.J.S.2C:20-1 and N.J.S.2C:21-15.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    N.J.S.2C:20-1 is amended to read as follows:

     2C:20-1. Definitions.  In chapters 20 and 21, unless a different meaning plainly is required:

     a.     "Deprive" means: (1) to withhold or cause to be withheld property of another permanently or for so extended a period as to appropriate a substantial portion of its economic value, or with purpose to restore only upon payment of reward or other compensation; or (2) to dispose or cause disposal of the property so as to make it unlikely that the owner will recover it.

     b.    "Fiduciary" means an executor, general administrator of an intestate, administrator with the will annexed, substituted administrator, guardian, substituted guardian, trustee under any trust, express, implied, resulting or constructive, substituted trustee, executor, conservator, curator, receiver, trustee in bankruptcy, assignee for the benefit of creditors, partner, agent or officer of a corporation, public or private, temporary administrator, administrator, administrator pendente lite, administrator ad prosequendum, administrator ad litem, attorney-in-fact or other person acting in a similar capacity.

     c.     "Financial institution" means a bank, insurance company, credit union, savings and loan association, investment trust or other organization held out to the public as a place of deposit of funds or medium of savings or collective investment.

     d.    "Government" means the United States, any state, county, municipality, or other political unit, or any department, agency or subdivision of any of the foregoing, or any corporation or other association carrying out the functions of government.

     e.     "Movable property" means property the location of which can be changed, including things growing on, affixed to, or found in land, and documents, although the rights represented thereby have no physical location. "Immovable property" is all other property.

     f.     "Obtain" means: (1) in relation to property, to bring about a transfer or purported transfer of a legal interest in the property, whether to the obtainer or another; or (2) in relation to labor or service, to secure performance thereof.

     g.     "Property" means anything of value, including real estate, tangible and intangible personal property, trade secrets, contract rights, choses in action and other interests in or claims to wealth,
admission or transportation tickets, captured or domestic animals, food and drink, electric, gas, steam or other power, financial instruments, information, data, and computer software, in either human readable or computer readable form, copies or originals.

     h.     "Property of another" includes property in which any person other than the actor has an interest which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property and regardless of the fact that the other person might be precluded from civil recovery because the property was used in an unlawful transaction or was subject to forfeiture as contraband.  Property in possession of the actor shall not be deemed property of another who has only a security interest therein, even if legal title is in the creditor pursuant to a conditional sales contract or other security agreement.

     i.      "Trade secret" means the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula or improvement which is secret and of value.  A trade secret shall be presumed to be secret when the owner thereof takes measures to prevent it from becoming available to persons other than those selected by the owner to have access thereto for limited purposes.

     j.     "Dealer in property" means a person who buys and sells property as a business.

     k.    "Traffic" means:

     (1) To sell, transfer, distribute, dispense or otherwise dispose of property to another person; or

     (2)   To buy, receive, possess, or obtain control of or use property, with intent to sell, transfer, distribute, dispense or otherwise dispose of such property to another person.

     l.      "Broken succession of title" means lack of regular documents of purchase and transfer by any seller except the manufacturer of the subject property, or possession of documents of purchase and transfer by any buyer without corresponding documents of sale and transfer in possession of seller, or possession of documents of sale and transfer by seller without corresponding documents of purchase and transfer in possession of any buyer.

     m.    "Person" includes any individual or entity or enterprise, as defined herein, holding or capable of holding a legal or beneficial interest in property.

     n.     "Anything of value" means any direct or indirect gain or advantage to any person.

     o.    "Interest in property which has been stolen" means title or right of possession to such property.

     p.    "Stolen property" means property that has been the subject of any unlawful taking.

     q.    "Enterprise" includes any individual, sole proprietorship, partnership, corporation, business trust, association, or other legal entity, and any union or group of individuals associated in fact, although not a legal entity, and it includes illicit as well as licit enterprises and governmental as well as other entities.

     r.     "Attorney General" includes the Attorney General of New Jersey, his assistants and deputies.  The term shall also include a county prosecutor or his designated assistant prosecutor, if a county prosecutor is expressly authorized in writing by the Attorney General to carry out the powers conferred on the Attorney General by this chapter.

     s.     "Access device" means property consisting of any telephone calling card number, credit card number, account number, mobile identification number, electronic serial number, personal identification number, or any other data intended to control or limit access to telecommunications or other computer networks in either human readable or computer readable  form, either copy or original, that can be used to obtain telephone service.  Access device also means property consisting of a card, code or other means of access to an account held by a financial institution, or any combination thereof, that may be used by the account holder for the purpose of initiating electronic fund transfers.

     t.     "Defaced access device" means any access device, in either human readable or computer readable form, either copy or original, which has been removed, erased, defaced, altered, destroyed, covered or otherwise changed in any manner from its original configuration.

     u.     "Domestic companion animal" means any animal commonly referred to as a pet or one that has been bought, bred, raised or otherwise acquired, in accordance with local ordinances and State and federal law for the primary purpose of providing companionship to the owner, rather than for business or agricultural purposes.

     v.     "Personal identifying information" means any name, number or other information that may be used, alone or in conjunction with any other information, to identify a specific individual and includes, but is not limited to, the name, address, telephone number, date of birth, social security number, official State issued identification number, employer or taxpayer number, place of employment, employee identification number, demand deposit account number, savings account number, credit card number, mother's maiden name, unique biometric data, such as fingerprint, voice print, retina or iris image or other unique physical representation, or unique electronic identification number, address or routing code of the individual.

     w.    “Attorney-in-fact” means an individual authorized pursuant to a written instrument, known as a power of attorney, to perform specified acts on behalf of the person executing the power of attorney, known as the principal, as the principal's agent.

(cf: P.L. 2004, c.11, s.1)


     2.  N.J.S.2C:21-15 is amended to read as follows:

     2C:21-15.  Misapplication of Entrusted Property and Property of Government or Financial Institution.  A person commits a crime if he applies or disposes of property that has been entrusted to him as a fiduciary, or property belonging to or required to be withheld for the benefit of the government or of a financial institution in a manner which he knows is unlawful and involves substantial risk of loss or detriment to the owner of the property or to a person for whose benefit the property was entrusted whether or not the actor has derived a pecuniary benefit. "Fiduciary" includes trustee, guardian, executor, administrator, receiver, attorney-in fact and any person carrying on fiduciary functions on behalf of a corporation or other organization which is a fiduciary.

     If the benefit derived from a violation of this section is $75,000.00, or more, the offender is guilty of a crime of the second degree.  If the benefit derived exceeds $1,000.00, but is less than $75,000.00, the offender is guilty of a crime of the third degree.  If the benefit derived is $1,000.00, or less, the offender is guilty of a crime of the fourth degree.

     For the purposes of this section, the term "benefit derived" shall include but shall not be limited to the amount of any tax avoided, evaded or otherwise unpaid or improperly retained or disposed of.

(cf: P.L. 1987, c. 76, s. 33)

 

     3.    This act shall take effect immediately.

 

 

STATEMENT

 

     This bill would amend N.J.S.2C:20-1 and N.J.S.2C:21-15 to provide that an “attorney-in-fact” is a fiduciary for purposes of the theft statutes. The bill defines “attorney-in-fact” as an individual authorized pursuant to a written instrument, known as a power of attorney, to perform specified acts on behalf of the person executing the power of attorney, known as the principal, as the principal's agent.

     Under current law, a fiduciary who misapplies entrusted property is guilty of theft.  However, this statute does not specifically encompass an attorney-in-fact. This bill would amend N.J.S.2C:21-15 to provide that the statute would apply to an attorney-in-fact who misapplies entrusted property.