ELIZABETH, NJ –History was made on June 1, 2017, in Honorable Stuart Peim’sElizabeth, NJ Superior Court, when attorney Martin “Champ” Goldman, Esq., currently of North Caldwell, and formerly a long-time resident of Livingston, used a common law Necessity Defense to attain a not guilty verdict for his client Keith Atkinson, 43, of Bloomingdale. Atkinson was indicted with four serious charges stemming from a Nov. 2, 2014 arrest involving racial tensions and fear of a possible repeat Ferguson incident. Atkinson said he had to put his life on hold for three years, delaying a wedding to his fiancé of four years, while he waited for his day in court. Due to research by Goldman’s legal partner at Harkavy, Goldman, Goldman, Gerstein, in West Caldwell, Roberto Espinosa, Esq., 30, of Elizabeth, Atkinson was vindicated and can finally move forward with his life.
At 3:16 am, on Nov. 2, 2014, Atkinson was pulled over while driving on Route 22 West in Mountainside at the Scotch Plains line by Cpl. Kenneth Capobianco for driving 68 m.p.h., which was 18 miles over the speed limit. Atkinson, noting the sirens and police lights, testified that he drove a few feet forward in order to safely pull over into a gas station. He provided the officer with his license, insurance card, etc.
Over the past two weeks, Capobianco testified that Atkinson was speeding and weaving in and out of lines like he was drunk. He said he asked Atkinson to get out of his vehicle and walk a straight line to see if he was driving drunk, which he wasn’t. No ticket was issued.
However, while watching Atkinson walk, Capobianco said he shined his flashlight into the vehicle and saw a clip/magazine on the front seat where Atkinson had previously been sitting. Goldman argued there was no probable cause for the search and won the point in court. In addition, according to Goldman, having a magazine only and no gun is not a crime in NJ.
At this time, Capobiancosaid he pulled his gun on Atkinson and asked where the gun was.
Atkinson said he told Capobianco he had no idea what the officer was talking about as there was no gun.
Later, seven officers combed the property andan eight-mile stretch of road looking for a tossed gun or magazine and didn’t find either one.
Capobianco, who said he was expecting a confrontation,put his gun away and attempted to wrestle the 6’ 3”, 300-pound Atkinson to the ground.
Atkinson, an African American, who had only been pulled over for speeding, said he began to fear for his life. With national news of the three-week-old Ferguson murder by a police officer fresh in his mind, Atkinson said he got back in his car to get away from Capobianco and possibly being shot.
He said the first thing he did inside of the car was to call his fiancé, Habeebah McCoyof North Plainfield, for help. The 17-year veteran postal worker, told him to drive to her house. She said she told him to do this so he would have a witness if the situation escalated.
Atkinson said he drove the speed limit to McCoy’s home and this was confirmed in testimony by Watchung Patrol Officer Jason Moberly, who was called to join a police chase through Union County to North Plainfield. Moberly, who unbeknownst to Capobianco, had a police car camera that video-taped everything from the police chase to the arrest, said that his car never went above 43 m.p.h. while following Atkinson to McCoy’s home.
Upon arriving at McCoy’s, Atkinson parked the vehicle and said he walked slowly to reach McCoy, but was tackled by police officers to the ground. They searched him for a gun, but none was found.
Capobianco testified that Atkinson ran from the car, but the police camera showed this to be false.
The police asked McCoy, who had been engaged to Atkinson for fouryears at the time, if she knew Atkinson and she said, “No.” While testifying, she said she feared that she would be shot if she admitted knowing Atkinson. Goldman said he used this circumstance to talk about racial discrimination, the Ferguson shooting and other like cases to make a point to the jury that McCoy’s fear of being shot was realistic.
Atkinson was indicted for second degree eluding for not stopping for a police car with its lights on, which Goldman said could have led to serious jail time if the jury had found that Atkinson’s driving, while allegedly eluding, was said to have put someone’s life in danger or in danger of severe injury. Goldman used police car footage, which he said was obtained through discovery, after the trial had already started, to prove that there had been no one on the road, and that there hadn’t been any pedestrians who could have gotten injured or possibly killed. Upon arriving at McCoy’s residence, Atkinson was also charged with resisting arrest, based upon Capobianco saying he saw Atkinson “bolt from the car.” As such, Atkinson was then charged with resisting arrest by fleeing a vehicle.Capobianco testified that he saw Atkinson run away. Goldman said he again used the camera’s footage to show Atkinson had not bolted or run from the vehicle but had simply walked to his fiancé’s apartment. Capobiancoalso said he believed Atkinson had discarded a gun and gotten rid of the magazine causing him to chargeAtkinson with tampering with evidence – despite the fact that no gun or magazine was found.
Goldman attempted to use a Necessity Defense that permitted Atkinson to flee the scene for his safety in his car, causing a “police chase” to ensue. When Goldman first raised the Necessity Defense, the judge said he was not aware of any such statute in the state of NJ. The Necessity Defense requires the following: 1) There must be a situation of emergency arising without fault on the part of the actor concerned; 2) This emergency must be so imminent and compelling as to raise a reasonable expectation of harm, either directly to the actor or upon those he was protecting; 3) This emergency must present no reasonable opportunity to avoid the injury without doing the criminal act; and 4) The injury impending from the emergency must be of sufficient seriousness to out measure criminal wrong.
According to Goldman, the defendant feared for his life and acted justly according to the common law defense.
After reading the defense brief, Peim allowed the Necessity Defense to be considered by the jury.
“When I originally raised the defense, both the prosecutor and the judge said that the laws of the state of NJ did not allow such a defense and asked us for case law or a statute that permitted the defense,” said Goldman. “Peim’s ruling that we could use the defense was exciting because it was an argument that no one remembered having made before.”
“Roberto looked long and hard to find cases to back up this claim,” said Goldman. “The judge allowed the case law and this is what lead to a not guilty verdict for my client.”
Espinoza cited the following case law: State v. Josephs, 174 N.J. 44, 102 (2002); State v. Tate, 194 N.J.Super. 622, 629 (Law Div.), aff’d 198 N.J. Super. 285 (App. Div. 1984), rev’d on other grounds 102 N.J. 64 (1986).
“The not guilty verdict shows that a jury of mixed races was able to find an African American man not guilty for being in a situation where he feared his life was in danger due to actions by the police is rewarding because it shows that the jury system works,” said Goldman, whose family owned the once famous Goldman hotel in West Orange.
“This is definitely a win for people of color and the justice system proved me right and I got a fair shot,” said Atkinson, who said he decided to act like an open book in court by admitting to having prior arrests when he was younger.
“I am ecstatic,” he said, “Now we can set a date to be married.”
Goldman said that Atkinson was brave to do admit to his prior offenses and that it is even more rewarding to have gotten this verdict by a jury that based its decision on the facts of the case, and didn’t use Atkinson’s past history to hurt his credibility.
After receiving the not guilty verdict, Goldman said he turned to Atkinson and said, “This is unbelievable and should be made into a movie.”
Atkinson, who has his ACDL license and has a business called Painite Inc. Technologies where he buys and sells computer parts, said he became a certified paralegal while in jail for a previous arrest. He said he used his paralegal skills to help other inmates file appellate papers. He said he has since then gotten an additional paralegal certification and has plans to open a 36-bed transitional home for the homeless and veterans in Irvington, called Alift, Inc. He said he also plans to “finally” set a wedding date.