By Art Gallagher
Last November I wrote Strange Justice, a piece about my observations of the criminal sentencings of former Brookdale Community Community College President Peter Burnham and former Eatontown Detective Philip Emanulle.
Both men were charged with Official Misconduct. Burnham pled guilty to the Official Misconduct Charge and to Theft. He charged $24,000 on the college’s credit cards for personal expenses over an eight year period and used a $20,000 federal grant for his son’s tuition at Monmouth University for personal use after Brookdale had already paid the tuition. In addition to Official Misconduct, Emanuelle was charged with Sexual Assault, Criminal Coercion and Tampering with Evidence. The Sexual Assault and Official Misconduct charges were dismissed as part of a plea agreement. Emanuelle pled guilty to Coercion and Tampering. Emanulle got five years probation. Burnham was sentenced to five years in prison with the stipulation that he serve at least two years before he is eligible for release.
Burnham is in State Prison now. A mutual friend tells me prison has not been easy for Burnham. That is an understatement. It hasn’t been easy for his family either. Burnham had already lost his job and pension. What was unexpected by his family is that he also lost his Social Security Benefits as a result of his conviction.
On January 8, Marlboro resident Mark Trawinski was sentenced to five months in prison for tax evasion. Between 2002 and 2008, Trawinski didn’t pay the employment taxes withheld from his employees wages or the business’s employment taxes. He beat the government for $713,759 and used the money in part to purchase a $1 million home in Florida that he tried to hide from the U.S. Bankruptcy Court and the IRS. In addition to his five months in prison, after Trawinski is released this spring he will be confined to his home for five months and he will undergo three years of supervised release. He must also pay back the $713,759 to the IRS.
Why is Burnham doing two years hard time for stealing $44,000 while Emanulle got off with probation for Sexual Assault and and Trawinski got five months for stealing $713,759? Official Misconduct.
As attorney Matheu D. Nunn wrote in New Jersey’s Official Misconduct Statute in a Nutshell,
…unlike many other “non-violent” crimes, pursuant to N.J.S.A. 2C:43-6.5, a person convicted of Official Misconduct:
“shall be sentenced to a mandatory minimum term of imprisonment without eligibility for parole as follows: for a crime of the fourth degree, the mandatory minimum term shall be one year; for a crime of the third degree, two years; for a crime of the second degree, five years; and for a crime of the first degree, 10 years; unless the provisions of any other law provide for a higher mandatory minimum term.”
According to Munn, the Official Misconduct statute applies to any “public servant.” Not just elected officials or government employees.
A public servant includes any officer or employee of government including legislators and judges as well as any person participating as a juror, advisor, consultant or otherwise, in performing a government function; it does not include a witness. The test is whether the person is performing a “government function.”
If Burham had stolen $44,000 as an employee of a private university, he probably wouldn’t be in prison. Had Emanuelle’s Official Misconduct charge not been dropped in the plea bargaining, he probably would be in prison.
In a press release on the day of Burnham and Emanuelle’s sentencings, Monmouth County Acting Prosecutor Christopher Gramiccioni said, “The opportunities for such crimes to be committed could increase with the anticipated flow of financial assistance that municipalities affected by Hurricane Sandy are expected to receive.” Gramiccioni set up at hotline (855-7-UNJUST) for the public to report such suspected crimes.
Here is the scary part–Official Misconduct is a crime of the second degree. As a result, the official faces up to 10 years in state prison if the benefit involved exceeded $200 in value. If the benefit is less than $200 in value it is a crime of the third degree and the official faces a term of imprisonment up to 5 years.
If the purpose is to injure another it will be a crime of the second degree no matter how slight the injury.
Official misconduct is,
Under New Jersey Official Misconduct law the public servant’s action or omission must be coupled “with a purpose to obtain a benefit for himself or another” or a purpose to injure another or deprive another of a benefit.
The required “purpose” element can be of two types: (1) where a defendant’s purpose is to obtain a benefit for him/her or another; and (2) where a public servant seeks to injure some person or deprive them of a gain or advantage – by being denied or impeded in the exercise of some right or privilege (in other words being vindictive).
At his sentencing, Burnham quoted Kipling’s, The Road Less Traveled, while pleading with Judge Thomas F. Scully to give him a lesser sentence than the one to which he had already agreed to serve.
I took the one less traveled by,
And that has made all the difference.
Burnham’s life and legacy are ruined. The road he took and the difference he is making is a warning to public servants who are tempted to enrich themselves or to use their power to injure another.