                        NOT FOR PUBLICATION WITHOUT THE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.




                                       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 October 26, 2017

              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 third-

degree theft, N.J.S.A. 2C:20-3(a).                Defendant moved for a new
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.




                                       2
                                 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




                                 3
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.


                                      4
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


                                            5
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


                                  6
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


                                        7
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


                                      8
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


                                       9
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[.]").
                                       10
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


                                   11
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 newly-

discovered evidence that the State accessed privileged attorney-

client 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

                                     12
            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

                                     13
findings   because   they   are    "supported   by   sufficient   credible

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

(2007).

    Affirmed.




                                     14
