NOT FOR PUBLICATION WITHOUT THE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
DOCKET NO. A-5109-18T4
STATE OF NEW JERSEY,
RICHARD E. LYNCH,
Submitted June 2, 2020 – Decided July 7, 2020
Before Judges Fisher and Accurso.
On appeal from an order of the Superior Court of New
Jersey, Law Division, Passaic County, Municipal
Appeal No. 6207.
Richard E. Lynch, appellant pro se.
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Marc A. Festa, Senior
Assistant Prosecutor, of counsel and on the brief).
Following a trial de novo in the Law Division, defendant Richard E.
Lynch was convicted of driving while intoxicated, executing an unsafe lane
change, failing to signal a turn, and having a cold, partially consumed, open
container of beer in his car. He appeals, contending the State failed to provide
him full discovery; denied him his Sixth Amendment right to confront the
officer who issued him the first ticket for an unsafe lane change; that the
dismissal of that ticket destroyed "probable cause," requiring the dismissal of
all the other charges; that the municipal prosecutor "perjured himself in order
to obtain an extension"; and that the trooper who stopped him "perjured
himself and his credibility should be questioned."
Judge Sokalski carefully addressed and rejected each of defendant's
arguments. Having reviewed the entire record ourselves, we are convinced
that none of defendant's arguments is of sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(2). Accordingly, we affirm for the reasons
expressed in the judge's oral opinion delivered from the bench on June 13,
2019. We add only the following.
Defendant was stopped at two in the morning off the Route 20/Interstate
80 ramp when Trooper Dellagicoma saw defendant's Range Rover unable to
maintain its lane and fail to signal. When defendant opened a window to hand
over his credentials, the trooper smelled alcohol. As defendant was getting out
of the car at the trooper's request, the Range Rover started to roll forward and
the trooper had to tell defendant to put the car in park before he got out.
Defendant failed the roadside sobriety tests and subsequently scored .11 on the
Defendant initially represented himself, and there were a number of
disputes over discovery he claimed the prosecutor failed to provide him. He
was eventually convicted in municipal court on two charges of failing to
maintain a lane, driving while intoxicated, reckless driving, having an open
container and failing to signal a turn. On defendant's 2018 appeal to the Law
Division, Judge Sokalski vacated defendant's convictions and remanded for a
new trial before a different judge, because he found the municipal court judge
failed to conduct a searching inquiry as to whether defendant intelligently and
knowingly waived his right to counsel.
Although Judge Sokalski ordered the retrial to occur within seventy-five
days, additional discovery disputes during the period in which defendant was
again representing himself made that timeframe difficult for the State. The
municipal prosecutor asked Judge Sokalski for an extension, which was
granted. It was in connection with this extension that defendant claims the
prosecutor "perjured himself," because the reasons he gave the municipal
judge for seeking the extension were not the same as those supporting his
request to Judge Sokalski.
Defendant eventually retained counsel on the remand, and the discovery
disputes were resolved. Judge Sokalski noted in his decision that defendant's
counsel identified certain outstanding issues relating to the discovery in July
2018, which he advised the municipal court judge he would work out with the
prosecutor. The municipal judge queried counsel again at an on-the-record
conference in October about whether he had all the discovery he was seeking.
When counsel stated he was still awaiting CAD records, the prosecutor advised
they had already been provided to defendant at least three times already.
Desirous that there be no further questions about discovery, the judge asked
whether the prosecutor had another copy with him. When advised he did, the
judge ordered the prosecutor to turn it over to counsel in open court, which
was done. When the court asked whether there was anything else, defense
counsel responded, "[t]hat's it for me, judge."
Defendant's counsel retained an expert who testified at a N.J.R.E. 104
hearing at which the municipal court admitted the Alcotest records.
Defendant's counsel cross-examined the trooper at length, both at the hearing
and at trial, including on a handwritten time entry on the "potential liability
warning" the trooper issued to the individual who picked defendant up at the
barracks on his release from custody. Defendant's claim that the trooper
perjured himself is grounded in the trooper's testimony interpreting his own
writing on that document.
The municipal judge found the trooper's testimony "very credible" and
found defendant guilty of driving while intoxicated, two charges of unsafe lane
change based on sequentially numbered tickets, failure to signal and
consumption of alcohol by a driver based on the open container when alone in
his car. The judge found the evidence insufficient to support the charge of
On trial de novo in the Law Division, defendant was again self-
represented. Among the issues he raised was the municipal judge having
convicted him on the two sequentially numbered tickets for unsafe lane
change, the first of which was supposedly issued over an hour before the stop
for drunk driving and signed by a Trooper Kerns who did not testify at trial.
When defendant stated on the record that he was never pulled over by a
Trooper Kerns, Judge Sokalski dismissed the first sequentially numbered ticket
for unsafe lane change.
Defendant, however, continued to argue the point. He maintained, as he
does on appeal, that the first "Kerns" ticket, issued for a stop in the "exact
same location," but an hour earlier, was what the State "used for probable
cause" and without it, there was no basis for Trooper Dellagicoma's stop and
the charges that followed. Defendant also argued, as he does on appeal, that
the State deliberately failed to turn over a copy of the Kerns ticket because
Trooper Kerns' testimony and video from his troop car, also not turned over in
discovery, "could have exonerated" defendant. Defendant further maintains
the State's failure to call Trooper Kerns denied him his Sixth Amendment right
to confront the witness.
Judge Sokalski rejected those arguments because defendant admitted in
response to the court's questions that he was never stopped by "Trooper
Kerns." The only stop was by Trooper Dellagicoma, who testified he was
riding alone. Judge Sokalski also noted that defendant had been aware of the
first ticket since at least five months before the retrial. The judge quoted a
colloquy between defendant and the municipal court judge at an on-the-record
conference in July 2018, when defendant was representing himself, in which
defendant referred to the Kerns ticket as "a mystical charge that just appeared."
The municipal court judge confirmed that it was a second ticket for unsafe lane
change, that the two appeared "repetitive," and that the issue could be
addressed at trial.
Judge Sokalski found that despite being aware of the Kerns ticket,
neither defendant nor his counsel sought the identity of the trooper in
discovery and did not address the issue on the retrial. Relying on State v.
Stein, 225 N.J. 582, 599 (2016), holding a "[d]efendant may not remain silent
on a discovery violation known to him in municipal court and strategically
calculate that he can bring it to life in a trial de novo before the Law Division ,"
the judge found no discovery violation by the State in connection with the
Kerns ticket. The judge further found that dismissal of that ticket, which was
apparently generated in error, had no effect on the basis of Trooper
Dellagicoma's stop, namely, his credible observations of defendant's unsafe
lane change and failure to signal.
We review the Law Division's findings in a trial de novo to determine
"whether there is 'sufficient credible evidence . . . in the record' to support the
trial court's findings." State v. Robertson, 228 N.J. 138, 148 (2017) (quoting
State v. Johnson, 42 N.J. 146, 162 (1964)). The Law Division's legal rulings,
we review de novo. State v. Kuropchak, 221 N.J. 368, 383 (2015). The
Supreme Court has instructed that when two courts "have entered concurrent
judgments on purely factual issues," as here, an appellate court should not
ordinarily alter those "findings of facts and credibility determinations . . .
absent a very obvious and exceptional showing of error." State v. Locurto, 157 N.J. 463, 474 (1999).
Applying those standards here, we find no error at all and affirm
defendant's convictions substantially for the reasons expressed by Judge
Sokalski in his careful and comprehensive opinion from the bench.