SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0076-16T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LYNDA STAMBAUGH-LUPO,

Defendant-Appellant.

_______________________________________________

Argued September 18, 2017 – Decided

Before Judges Messano and Accurso.

On appeal from the Superior Court of New 

Jersey, Law Division, Somerset County, 

Indictment No. 13-04-0169.

Michael Confusione argued the cause for 

appellant (Hegge & Confusione, LLC, attorneys; 

Mr. Confusione, of counsel and on the briefs).

Paul H. Heinzel, Assistant Prosecutor, argued 

the cause for respondent (Michael H. 

Robertson, Somerset County Prosecutor, 

attorney; Mr. Heinzel, of counsel and on the 

brief).

PER CURIAM

A jury convicted defendant Linda Stambaugh Lupo of thirddegree theft, N.J.S.A. 2C:20-3(a). Defendant moved for a new 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R. 1:36-3.

October 26, 2017
2

trial based on "newly discovered evidence," claiming police 

intentionally accessed email stored on her family's cellphones and 

other electronic devices during trial, including emails between 

her and her attorney, in violation of the Sixth Amendment. The 

judge denied the motion after conducting an evidentiary hearing, 

and sentenced defendant to a suspended 364-day term in the county 

jail, a four-year term of probation, $500 restitution and 

appropriate financial penalties. 

On appeal, defendant presents the following points for our 

consideration.

POINT 1

THE TRIAL COURT ERRED IN ADMITTING INTO 

EVIDENCE BEFORE THE JURY THE ALLEGED STOLEN 

ITEMS BECAUSE OF A GLARING LACK OF CHAIN OF 

CUSTODY, WARRANTING REVERSAL AND REMAND FOR A 

NEW TRIAL ON THE THEFT CHARGE.

POINT 2

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S 

MOTION FOR, AT LEAST, A NEW TRIAL, IN LIGHT 

OF DETECTIVE TAYLOR'S ARREST OF DEFENDANT IN 

THE MIDDLE OF TRIAL – THE NIGHT BEFORE SHE WAS 

TO TESTIFY, AND ON [THE] GROUND THAT THE 

PROSECUTION INVADED ATTORNEY-CLIENT 

PRIVILEGED EMAILS AND OTHER ELECTRONIC 

COMMUNICATIONS BETWEEN DEFENDANT AND HER TRIAL 

COUNSEL.

Having considered these arguments in light of the record and 

applicable legal standards, we affirm.
3

I.

From 2009 to 2012, defendant provided in-home medical therapy 

to the victim, whose husband was a retired major league baseball 

player. These treatments were performed several days per week for 

several hours at a time in the basement of the victim's home, 

during which defendant would sometimes be left alone while the 

victim went upstairs to her bedroom to shower. When her husband 

became ill, the victim suspended the treatments to help care for 

him, but, by January 2013, her family contacted defendant to resume 

the treatments. The victim's husband passed away on January 29, 

2013, and defendant began treating the victim again two days later.

The victim, however, noticed some unusual circumstances. For 

example, defendant suggested the therapy take place in the victim's 

bedroom, which had never occurred before. While the victim 

showered in the bedroom's bath, she could hear the alarm signal 

several times that the front door opened; yet, no one was in the 

house except defendant. On another occasion, the victim emerged 

from the shower to find defendant standing on the side of the bed 

opposite where the therapy was taking place. 

The victim intended to inter her husband with some jewelry 

of special significance. On February 4, she and other family 

members searched in vain for the jewelry box where her husband 
4

kept these pieces. Unable to find it, the victim called the 

police.

Police arrived at the victim's home on February 5 and spoke 

to her regarding what items were missing and who had access to her 

bedroom. Defendant was also there and agreed to accompany police 

to the station, where she provided a taped statement that was 

played for the jury. Although defendant originally denied taking 

anything, she ultimately admitted that the victim's jewelry was 

in a plastic supermarket bag in defendant's home. Detectives 

pressed for details as to how much jewelry she took, but defendant 

stated, "I honestly don't know[.] I didn't look, I honestly didn't 

look[.] I haven't had a chance to do anything . . . . I just put 

it into the bag."

 Police secured a search warrant for defendant's home and 

found the bag as described in the "mudroom." It contained some 

jewelry engraved with the deceased husband's initials and a 

department store receipt with the victim's name. Police found 

more than two hundred pieces of jewelry throughout the house, some 

in Ziploc bags, and they found sports memorabilia, including a 

glove and a baseball signed by Hank Aaron, in the basement.

Police seized approximately one hundred pieces of jewelry and 

the baseball glove and autographed ball, which the lead detective 

placed in the trunk of his car and took to police headquarters. 
5

Without inventorying the evidence, he locked it in one of the 

interview rooms, for which he had the only key. Police initially

permitted the victim and her niece to enter the interview room 

without accompaniment to look through the seized items. The victim 

later identified the items and provided details about some of the 

jewelry to police, who documented her identification and 

photographed the items. 

Police permitted the victim to take the identified items and 

baseball memorabilia home and returned the unidentified items to 

defendant. Some weeks later, the victim supplied police with a 

list of other items that she could not locate in her home. The 

State argued that defendant was also responsible for the theft of 

these items. 

Sometime before trial, police went to the victim's home, to 

take the jewelry for professional appraisal and to permit 

defendant's inspection of the baseball and glove. A few days 

later, the victim called police and told them the glove she had 

given them was not the same one she identified at police 

headquarters months earlier. The State notified defendant of the 

mistake.

At trial, the victim identified and provided details as to 

when she had last seen some of the seized items prior to February 

4, 2013. The prosecutor posed no questions about the autographed 
6

baseball during direct examination of the victim, however, on 

cross-examination, it became apparent that the victim had supplied 

a different baseball to police. Although the State agreed it 

would not offer the baseball in evidence, the judge held an

N.J.R.E. 104 hearing at defendant's request outside the presence 

of the jury. The victim explained the reason for her mistake.

The lead detective testified that he picked up the jewelry 

from the victim for appraisal but did not inventory the items 

before securing them in a locker at police headquarters. He then 

left for vacation and another detective actually took the jewelry 

for appraisal. 

At the end of the State's case, defendant objected to the 

admission of the jewelry in evidence, but not the baseball glove; 

the State did not seek to admit the autographed baseball. Although 

she expressed concerns about the chain of custody, the judge 

ultimately decided to admit the evidence. Citing in particular 

our decision in State v. Brown, 99 N.J. Super. 22 (App. Div.), 

certif. denied, 51 N.J. 468 (1968), the judge concluded any defects 

in the chain of custody did not affect admissibility but only the 

jury's evaluation of the weight of the evidence.

Defendant elected not to testify, but her husband did. He 

was home when police executed the search warrant. He identified 

photos of a baseball autographed by Hank Aaron that he purchased 
7

on Ebay and displayed in his home. He also identified a photo of 

a baseball glove that he purchased for his son. Additionally, 

defendant's husband described an ongoing in-home business that the 

couple conducted that included the purchase of jewelry and other 

items for resale. He claimed defendant kept some of these items 

in bags in the mudroom and around the house. 

In summation, defense counsel argued that the baseball glove 

was too small to fit a major league ballplayer and surmised it was 

defendant's son's. He urged the male jurors to try the glove on 

and see if it felt like one "worn by a professional baseball 

player." He also vigorously attacked the chain of custody for all 

the evidence, implying that most of the items were not the 

victim's, and suggesting that someone else must be responsible for 

having stolen the missing items that police never recovered. He 

highlighted the appraised value of the jewelry actually recovered, 

which was less than $500.

In Point I, defendant contends the admission in evidence of 

the jewelry and baseball glove was reversible error because "there 

was not just a 'defect' in the chain of custody but a complete 

absence of foundation and no showing of uninterrupted chain of 

custody . . . as required by New Jersey law." We disagree.

"[A] trial court's evidentiary rulings are entitled to 

deference absent a showing of an abuse of discretion, i.e., there 
8

has been a clear error of judgment." State v. Nantambu, 221 N.J.

390, 402 (2015) (quoting State v. Harris, 209 N.J. 431, 439 

(2012)). "The requirement of authentication or identification as 

a condition precedent to admissibility is satisfied by evidence 

sufficient to support a finding that the matter is what its 

proponent claims." N.J.R.E. 901. 

"The determination of whether the State sufficiently 

established the chain of custody is within the discretion of the 

trial court." State v. Mosner, 407 N.J. Super. 40, 62 (App. Div. 

2009); see also Brown, supra, 99 N.J. Super. at 27 ("Whether the 

requisite chain of possession has been sufficiently established 

to justify admission of the exhibit is a matter committed to the 

discretion of the trial judge, and his determination will not be 

overturned in the absence of a clearly mistaken exercise 

thereof."). Generally speaking, the proponent of the evidence 

must show an uninterrupted chain of custody. Mosner, supra, 407 

N.J. Super. at 62. 

Nonetheless, "the State is not obligated to negate every 

possibility of substitution or change in condition of the 

evidence." State v. Brunson, 132 N.J. 377, 393 (1993). The

evidence will usually be admitted "if the court finds in reasonable 

probability that the evidence has not been changed in important 

respects or is in substantially the same condition as when the 
9

crime was committed." Mosner, supra, 407 N.J. Super. at 62 

(citations omitted). Defects in the chain do not negate 

admissibility but go instead to the weight of the evidence. Ibid.

(citing State v. Morton, 155 N.J. 383, 446 (1998), cert. denied,

532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001)).

Here, defendant argues there were breaks in the chain of 

custody when police left the victim and her niece in the 

interrogation room alone with the jewelry, when they returned 

items to the victim's possession and when the lead detective left 

items in police headquarters without documentation and another 

detective took them for appraisal. The victim, however, identified 

photographs of the jewelry taken after she identified the pieces

at police headquarters and before the items were returned, and she 

identified specific items shown to her at trial which were in 

those photos. 

"When an item of evidence is not fungible but is instead 

easily identifiable, no chain of custody issue is presented." 

Biunno, Weisbard & Zegas, Current N.J. Rules of Evidence, comment 

2 on N.J.R.E. 901 (2017) (citing State v. B.H., 290 N.J. Super.

588, 595 (App. Div. 1996), rev'd in part on other grounds sub 

nom., State v. Hoffman, 149 N.J. 564 (1997)). In other words, 

defendant never claimed the nature or character of the evidence 

was altered between when it was seized and when it was introduced 
10

at trial. Mosner, supra, 407 N.J. Super. at 62. Rather, she 

claimed the actual items of jewelry were either never stolen from 

the victim or never recovered in defendant's home. Simply put, 

the argument made at trial had little to do with admissibility of 

the jewelry and everything to do, as the trial judge noted, with 

the persuasive weight of the State's evidence. We find no mistaken 

exercise of the judge's discretion.1

II.

As noted, after the verdict defendant moved for a new trial. 

We provide some additional background.

When defendant was arrested and released on bail, the judge 

imposed a condition forbidding any contact with the victim. During 

trial, the victim's daughter reported to police that she observed 

defendant drive by the home and use her cellphone apparently to 

take photographs. The trial judge issued an arrest warrant 

charging defendant with contempt, N.J.S.A. 2C:29-9(a), and a 

different judge approved the State's application for a search 

warrant to "seize from [defendant's] residence . . . any and all 

cameras, cell phones, thumb drives and recording devices." 

 

1 Defendant did not object to the admission of the baseball glove 

into evidence and, as noted, defense counsel used the glove as an 

exhibit in urging her acquittal. Its admission was not error, 

much less plain error. See R. 2:10-2 ("Any error or omission 

shall be disregarded by the appellate court unless it is of such 

a nature as to have been clearly capable of producing an unjust 

result[.]"). 
11

Defendant was arrested the night before the last day of testimony 

at trial. Police seized various cell phones and electronic devices 

from her home.

The trial judge arraigned defendant on the contempt charge 

the next day. After defendant's husband testified but before the 

defense rested, the judge conducted a thorough voir dire regarding 

defendant's election not to testify. Among other things, defendant 

stated she had discussed her options with counsel, was voluntarily 

deciding not to testify and was not under the influence of any 

drugs or alcohol. 

Several weeks after the jury returned its verdict, defendant 

moved for a new trial. Defendant's husband certified he obtained 

information that e-mail communications on his and defendant's

electronic devices, which included attorney-client communications, 

"had been invaded" by an outside IP address while the devices were 

in police custody. The judge permitted the State's and defendant's 

experts to access metadata from the devices and subsequently held 

an evidentiary hearing on the issue. Both experts testified.

After reviewing the party's submissions and testimony, the 

judge denied defendant's motion and issued an order and written 

decision on March 9, 2016. She found the State's expert to be 

more credible, specifically rejecting defendant's expert's 

assertion that members of the police force regularly and routinely 
12

accessed defendant's "phone at distinct intervals every 14 to 15 

minutes 24/7."

In Point II, defendant argues her arrest during trial 

infringed upon her right to testify, and she presented newlydiscovered evidence that the State accessed privileged attorneyclient communications in violation of her Sixth Amendment rights, 

requiring a new trial. We find little merit to either contention.

Defense counsel filed a certification in support of the motion

for a new trial stating that defendant was highly agitated in 

court the day after her arrest. The record belies this, both by 

the absence of any contemporaneous statements made by defense 

counsel indicating defendant's distress and by defendant's own 

statements to the judge during the voir dire. The argument 

warrants no further discussion. R. 2:11-3(e)(2).

A "judge . . . may grant the defendant a new trial if required 

in the interest of justice." R. 3:20-1. "Rule 3:20-2 permits a 

defendant to do so 'on the ground of newly-discovered evidence' 

at any time." State v. Armour, 446 N.J. Super. 295, 305 (App. 

Div. 2016). 

To meet the standard for a new trial based on 

newly discovered evidence, defendant must show 

that the evidence is 1) material, and not 

"merely" cumulative, impeaching, or 

contradictory; 2) that the evidence was 

discovered after completion of the trial and 

was "not discoverable by reasonable diligence 

beforehand"; and 3) that the evidence "would 
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probably change the jury's verdict if a new 

trial were granted."

[State v. Ways, 180 N.J. 171, 187 (2004) 

(quoting State v. Carter, 85 N.J. 300, 314 

(1981)).]

"[A] motion for a new trial is addressed to the sound discretion 

of the trial judge, and the exercise of that discretion will not 

be interfered with on appeal unless a clear abuse has been shown." 

Armour, supra, 446 N.J. Super. at 306 (quoting State v. Russo, 333 

N.J. Super. 119, 137 (App. Div. 2000) (alteration in original)).

Defendant's motion was not based upon newly-discovered 

evidence in the traditional sense. She did not present newly 

discovered, material evidence which, if admitted at trial, would 

have probably altered the verdict. Rather, defendant's 

allegations centered on alleged police misconduct that infringed 

upon her Sixth Amendment rights. See, e.g., State v. Mazzarisi, 

440 N.J. Super. 433, 444-446, 449 (App. Div. 2015) (considering 

whether surreptitious recording of conversations between the 

defendant and his attorney at police station was a violation of 

the Sixth Amendment). 

However, defendant ignores the judge's rejection of the 

essential premise of her argument. After listening to the

testimony and assessing the credibility of the experts, the judge 

concluded that police had never accessed defendant's electronic 

devices in the first instance. We defer to the judges factual 
14

findings because they are "supported by sufficient credible 

evidence in the record." State v. Elders, 192 N.J. 224, 243 

(2007).

Affirmed.