On appeal from the Superior Court, Law Division, Passaic County.
Matthews, Gaulkin and Shebell. The opinion of the court was delivered by Gaulkin, J.A.D.
Defendant was charged in the Paterson Municipal Court with 8 violations of N.J.S.A. 43:21-16(e) for failing to remit unemployment insurance contributions due for the fourth quarter of 1980, the four quarters of 1981 and the first three quarters of 1982. Defendant was acquitted on the first three charges but convicted on the latter five; he was fined $175 and $25 costs on each conviction. On his de novo appeal to the Law Division defendant was again convicted on the five charges; the same fines and costs were imposed, but were stayed pending appeal. On this appeal from the Law Division judgment, defendant urges:
N.J.S.A. 43:21-16(e) is unconstitutional since it is in contravention of the New Jersey Constitution of 1947, Art. I, paragraph 13.
The sentence imposed by the trial judge was manifestly excessive.
It is a violation of Disciplinary Rule 7-105 for the Attorney General's Office to use a criminal statute to enforce a civil liability and therefore the State of New Jersey must be estopped from prosecuting the instant complaints.
Defendant's challenge to the constitutionality of N.J.S.A. 43:21-16(e) is bottomed on his misperception that the statute "requires no proof on behalf of the State to show an intentional, willful or fraudulent intent on the part of the defendant." We find that the statute does require that a defendant act "with intent to defraud" the State or "with intent to evade" payment. And since the State here failed to either allege or prove such intent, we reverse.*fn1 See State v. Ultra Motors, Inc., 40 N.J. Super. 54, 57 (Cty.Ct.1956).
N.J.S.A. 43:21-16(e) provides in full:
(e) Any employing unit or any officer or agent of an employing unit, employer or person failing to remit, when payable, any employer contributions, or worker contributions (if withheld or deducted), or the amount of such worker contributions (if not withheld or deducted), or filing or causing to be filed with the Division of Employment Security of the Department of Labor and Industry of the State of New Jersey, any false or fraudulent report or statement, and any person who aids or abets an employing unit, employer, or any person in the preparation or filing of any false or fraudulent report or statement with the aforesaid division with intent to defraud the aforesaid division or the State of New Jersey or an employment security agency of any other State or of the Federal Government, or with intent to evade the payment of any contributions, interest or penalties, or any part thereof, which shall be due under the provisions of this chapter (R.S. 43:21-1 et seq.), shall be liable for each offense upon conviction before any County Court, county district court, criminal judicial district court, or magistrate's court, to a fine not to exceed $1,000.00 or by imprisonment for a term not to exceed 90 days, or both, at the discretion of the court. The fine upon conviction ...