STATE OF NEW JERSEY v. STEPHEN P. MAROLDA (06-08-1382, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4556-19

STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent, March 4, 2022

v. APPELLATE DIVISION

STEPHEN P. MAROLDA,

Defendant-Appellant.
_______________________

Argued February 9, 2022 – Decided March 4, 2022

Before Judges Hoffman, Whipple and Geiger.

On appeal from the Superior Court of New Jersey,
Law Division, Bergen County, Accusation No. 06-08-
1382.

Eric V. Kleiner argued the cause for appellant.

William P. Miller, Assistant Prosecutor, argued the
cause for respondent (Mark Musella, Bergen County
Prosecutor, attorney; Ian C. Kennedy, Assistant
Prosecutor, of counsel; Catherine A. Foddai, Legal
Assistant, on the brief).

The opinion of the court was delivered by

GEIGER, J.A.D.
 Defendant Stephen P. Marolda appeals from a Law Division order

denying the petition for post-conviction relief (PCR) that he filed almost

thirteen years after he was sentenced in accordance with a plea agreement,

without an evidentiary hearing. We affirm.

I.

We derive the following facts from the record. Defendant owned and

operated a successful office equipment business named E-Media Plus. He

developed a significant gambling problem and began betting large sums

weekly with a bookmaker named Robert D'Alessio, who is referred to as

"Elvis." Elvis instituted daily and weekly betting limits for his clients;

defendant's limit was $10,000 per day. Defendant told Elvis he knew a

number of people who wanted to sign up for new accounts. Some were actual

bettors, and some were fictitious. Defendant claims he "opened up a series of

accounts" using the names of his employees to circumvent the betting limits

imposed by Elvis.

As part of its investigation of Elvis for illegal gambling operations, the

Bergen County Prosecutor's Office (BCPO) wiretapped Elvis, who frequently

spoke to defendant on the phone. These calls led to the BCPO's interest in

defendant and his eventual arrest. Wiretap evidence was gathered from

December 10, 2005 to February 9, 2006. On intercepted phone conversations,

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defendant was heard complaining to Elvis about difficulties in getting people

holding accounts to pay their weekly debts. The BCPO concluded defendant

was promoting gambling by acting as an agent of Elvis. Defendant and his

wife were arrested on February 9, 2006. Defendant was charged with third-

degree promoting gambling, N.J.S.A. 2C:37-2(a), third-degree conspiracy to

promote gambling, N.J.S.A. 2C:5-2 and 2C:37-2(a), and second-degree

financial facilitation of criminal activity, N.J.S.A. 2C:21-25.

After his arrest, defendant's neighbor, who was purportedly friendly with

then Bergen County Prosecutor John Molinelli, intervened on defendant's

behalf and spoke to Molinelli about defendant's plight. Molinelli allegedly

recommended that defendant retain attorney Joseph Rem. 1 Defendant claimed

he hired Rem based on that recommendation.

Defendant further claims that Molinelli told defendant's neighbor that

Molinelli would be making a global offer and if defendant did not forfeit the

$3,000,000 voluntarily, the $4,300,000 seized would be confiscated, his wife

1
Any such recommendation violates the Code of Ethics governing county
prosecutors. Code of Ethics for County Prosecutors, (5)(K) (Apr. 30, 1997)
("No county prosecutor . . . shall recommend, contact or assist in obtaining
counsel to represent any person . . . who is accused of a criminal offense.").
Defendant acknowledges, however, that investigation "yielded no evidence"
that Rem "played any part in the actions taken by Molinelli" regarding
"retain[ing] a particular defense counsel." Moreover, defendant does not claim
that Rem had a conflict of interest or that Rem's loyalty was to Molinelli,
rather than to him.

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would go to jail, and he would go to prison. Defendant contends he waived his

right to indictment and trial to avoid that result.

Defendant alleges that he told Rem that he was just gambling, the

accounts with Elvis were set up to facilitate larger personal bets, and that he

had never collected or laundered money for Elvis. He claims he "paid taxes on

every check that was made to a person that [he] double endorsed [to] pay

Elvis."

Defendant claims that Rem did not undertake any investigation and did

not explain the law of promoting gambling. He alleges Rem told him "the

BCPO's case had [him] over a barrel and that [he] was going to go to state

prison along [with] his wife if [he] did not fall on [his] sword and plead

guilty." He further alleges that Rem told him he "was promoting gambling

whether [he] gambled the money on [his] own as a player or whether [he]

collected for Elvis. He said it did not matter because gambling at that level

alone was sufficient to prove [he] promoted gambling."

Rem and the BCPO began discussions to explore whether an amenable

plea agreement could be reached because defendant strongly wished to have

the charges against his wife dismissed for the benefit of her and their children.

On February 24, 2006, defendant entered into a cooperation agreement with

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the BCPO to provide specific information to advance the BCPO's ongoing

gambling investigation.

On May 4, 2006, the State of New Jersey, acting through the BCPO,

filed a verified complaint for civil forfeiture pursuant to N.J.S.A. 2C:64 -1,

against funds on deposit in accounts in the name of defendant or E-Media Plus,

Inc., American Express gift checks seized from defendant, and ninety-one gift

cards. The complaint alleged that defendant engaged in conspiracy;

racketeering, possession of gambling records, promotion of gambling; and

financial facilitation and charged him with those offenses. It further alleged:

4. The investigation revealed that large gambling rings
were conducted through various operatives or "agents"
that were running illegal gambling "packages."

5. The agents would collect money (losses from) or
pay winnings to actual bettors.

6. The investigation revealed that code names and
passwords were used to place[] wagers on various
sporting events each week.

7. The investigation further revealed that over one
million dollars per week in illegal wagers were placed
and an average of $500,000[] per week was being paid
out and/or collected by the members of this gambling
ring.

8. The investigation also uncovered an extensive
money laundering investigation by Robert[] D'Alessio
and his co-conspirators in an effort to hide the illicit
cash proceeds.

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 9. The defendant property, presently in the possession
of the [BCPO], was used or intended to be used in the
furtherance of criminal activity, or was the proceeds
of such criminal activity.

10. . . . Stephen Marolda, individually and as owner[]
of E-Media Plus, Inc., along with others identified in
this investigation, transported or possessed the
defendant currency knowing or which a reasonable
person would have believed to be derived from
criminal activity.

11. . . . Stephen Marolda and the other claimants
engaged in transactions involving property known or
which a reasonable person would believe to be derived
from criminal activity with the intent to facilitate or
promote the criminal activity.

12. The defendant currency . . . seized from . . .
Ste[ph]en Marolda and E-Media Plus, Inc. presently in
the possession of the [BCPO], was used or intended to
be used in the furtherance of illegal activity, or was
the proceeds of any such illegal activity.

On August 17, 2006, a plea agreement was reached that resolved the

criminal charges and the civil forfeiture action. In exchange for a

recommended sentence of a three-year term of probation conditioned upon

180-days in jail, and the dismissal of the charges filed against defendant's

wife, defendant: (1) waived his right to indictment and trial by jury; (2) pled

guilty to an accusation charging him with third-degree promoting gambling;

(3) agreed to a consent order for final judgment in the civil forfeiture action

forfeiting $3,000,000 to the BCPO; and (4) agreed to provide truthful

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testimony at the trial of any co-defendants. The State did not object to the jail

term being served by electronically monitored home detention and the early

termination of probation after eighteen months if defendant did not violate the

terms of probation.

During the plea hearing, defendant testified that his attorney answered

all of his questions, that he was satisfied with the services his attorney

rendered, and that his answers to the questions on the plea form were truthful

and accurate. Defendant acknowledged that by pleading guilty, he was

admitting the truth of the charge. Defendant further acknowledged that he was

entering the guilty plea freely and voluntarily without anyone forcing or

threatening him to do so.

Defendant then provided the following factual basis for his plea.

Defendant stated he gambled through Elvis and paid him on a weekly or

biweekly basis. He acknowledged he accepted bets for some of his employees,

naming two of them. He admitted to participating in "a pay-and-collect

situation with both of those individuals and Elvis."

Defendant testified that Elvis set up four betting lines for him that

totaled $260,000 per week. If he lost a bet, he would pay Elvis by checks

under $10,000 each. Defendant maintained written records of the bets that

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indicated the amount he needed to collect from the employees. During the

colloquy, defendant made the following additional admissions:

Q: [D]id you keep or help keep written records
regarding [bets on the accounts he managed]? In other
words, you would rely on various records that would
tell you I need to collect a certain amount of money
from - -[?]

Defendant: Yes.

Q: From Mr. Cohen or Mr. Reilly [sic] and pay Elvis?

Defendant: That's correct.

The trial court found defendant provided a factual basis for the plea and

entered the plea voluntarily. During the sentencing hearing on November 3,

2006, defense counsel noted there were no additions, changes, or corrections to

the presentence investigation report. Counsel further stated that defendant

"pled guilty to forwarding to a bookie the bets of his associate when he paid

his own gambling debts, so he assisted in gambling in that he acted as a go-

between; that people placed bets with him." Counsel described the plea

bargain as "fair" and asked the court "to honor its terms." Defendant did not

allocute.

The court sentenced defendant to one year of probation conditioned upon

180 days in jail, and afforded defendant an opportunity to apply for electronic

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monitoring or work release. Defendant did not appeal his conviction or

sentence.

While in court, defendant signed a consent order for final judgment for

the forfeiture of $3,000,000 to the BCPO. The consent order also stated that

defendant, his wife, and E-Media Plus "waive any claim or cause of action

they may have now or in the future against the State of New Jersey, the

[BCPO] . . . or any of their agents or employees, relating to the seizure,

forfeiture and retention of the defendant['s] property . . . ."

On September 30, 2019, almost thirteen years after he was sentenced,

defendant filed a first petition for PCR. Defendant sought an evidentiary

hearing, withdrawal of his guilty plea, and the return of the forfeited funds.

He argued that the time limitation imposed by Rule 3:22-12(a)(1) should be

relaxed. Defendant raised claims of actual innocence, newly discovered

evidence, ineffective assistance of counsel, and that the BCPO withheld

exculpatory evidence. Defendant recanted his admissions during the plea

hearing, contended that he never acted as a bookmaker for Elvis, and claimed

his testimony during the plea hearing was fiction.

The petition was supported by several certifications, including the

certification of Steven Cohen who "worked for [defendant] and E-Media Plus

during the relevant times that are the subject of the criminal investigati on from

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late 2005" until defendant's arrest. In paragraph eighteen of his certification,

Cohen stated:

It did happen that [defendant] called me sometimes
after he would bet many of the thousands of dollars on
several maxed out accounts he had if I would like a
small [percentage] of a bet he had placed in order to
root along with him usually for one of our favorite NY
teams. It was a symbolic gesture. No money or
anything of value ever changed hands [plus or minus]
between [defendant] and me ever any time he asked
me if I wished to take a small [percentage] of one of
his bets.

In another supporting certification, Dianne Coopey, who also worked for

defendant at E-Media Plus during the relevant period, stated: "During the

entire time period that this investigation took place I often overheard

[defendant] talking on the phone or conversing with fellow workers about

gambling and gambling related matters, but never once did I ever hear

[defendant] acting as an agent or as a collector for bookmakers."

Following briefing and oral argument, the PCR court issued a July 13,

2020 order and accompanying written decision denying PCR without an

evidentiary hearing. The court found that trial counsel "was not deficient, and

the defendant received the benefit of the plea deal" which "minimize[ed] the

exposure the defendant and his wife were facing." Further, there was "no

evidence that [trial counsel's] representation was deficient or prejudiced[.]"

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 The court concluded that defendant made a "bare assertion of innocence"

which was "insufficient to justify withdrawal of [the] guilty plea." The court

found defendant did not present any specific facts that credibly supported his

claim and "defendant's attack on the voluntariness of his plea has no merit."

The court further determined that defendant failed to submit facts showing he

was coerced or pressured to accept the plea agreement by outside influences.

The court rejected defendant's claim of newly discovered evidence. It

found his claim of actual innocence was "based on speculation and

unsupported claims against former Prosecutor Molinelli."

The court also rejected defendant's claim that the BCPO violated its duty

to disclose exculpatory evidence. It found "[t]here is no evidence that the

Prosecutor withheld exculpatory evidence." The court characterized

defendant's application as "an attempt to reopen a fourteen-year-old case and

go on a fishing expedition."

The court considered "the extent and cause of the delay, the prejudice to

the State, and the importance of the petitioner's claim." State v. Mitchell, 126

N.J. 565, 580 (1992). The court explained that "[a]bsent compelling,

extenuating circumstances, the longer a defendant delays in filing his PCR

petition, the heavier the burden becomes in justifying the late filing." The

court noted the petition was filed thirteen years after defendant's conviction

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despite defendant "admit[ting] that he considered a [PCR] application many

years ago but chose not to proceed" due to "what [defendant] believes [was]

prosecutorial misconduct and fear of retaliation[.]" The court found:

There is no evidence of excusable neglect, nor is there
any fundamental injustice to warrant relaxation of the
rule. The defendant provided no compelling or
exceptional circumstances to warrant relaxation of the
rule. Furthermore, the prejudice to the State would be
substantial. Over the ensuing years, witnesses'
memories would certainly have faded, others'
convictions have been expunged and it is highly likely
that witnesses would not be available for trial.

As to the request for an evidentiary hearing, the court determined that

viewing the facts most favorably to defendant, he did not demonstrate that an

evidentiary hearing was necessary. The court reiterated that "defendant's

assertions are without any basis in fact" and were "merely speculation."

Regarding the return of the forfeited funds, the court employed the test

adopted in State v. Amboy Nat. Bank, 447 N.J. Super. 142, 157 (App. Div.

2016), and found the State "met its burden that there was a causal connection

between the $3,000,000.00 and the illicit funds attributed to promotion of

gambling."

This appeal followed. Defendant raises the following points:

POINT I

THE LOWER COURT ERRED IN NOT ORDERING
AN EVIDENTIARY HEARING WHEN THE PCR
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MATTER INVOLVED FACTS AND TESTIMONY
WHICH ARE OUTSIDE THE RECORD OF ANY
LOWER COURT PROCEEDING.

POINT II

THE INADEQUATE INVESTIGATION,
PREPARATION, AND PERFORMANCE OF
DEFENSE COUNSEL VIOLATED DEFENDANT'S
RIGHT TO THE EFFECTIVE ASSISTANCE OF
COUNSEL GUARANTEED UNDER THE UNITED
STATES AND NEW JERSEY CONSTITUTIONS.

POINT III

THE FIVE-YEAR RULE ON PCR IS RELAXED
AND IS NOT APPLICABLE.

POINT IV

APPELLANT'S CONFISCATED FUNDS MUST BE
RETURNED AS A MATTER OF LAW.

POINT V

THE LOWER COURT ERRED IN MARSHALING
THE FACTS AND LAW REGARDING
APPELLANT'S [RULE] 3:21 MOTION TO
WITHDRAW HIS GUILTY PLEA BASED ON A
COLORABLE CLAIM OF INNOCENCE.

POINT VI

THE LOWER COURT IGNORED NEWLY-
DISCOVERED EVIDENCE.

POINT VII

THE PROSECUTOR'S FAILURE TO CORRECT
FALSE AND MISLEADING EVIDENCE
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 AMOUNTED TO PROSECUTORIAL
MISCONDUCT.

POINT VIII

APPELLANT ASSERTS A FREE-STANDING
ACTUAL INNOCENCE CLAIM WHICH THE
LOWER COURT IGNORED.

II.

Defendant pled guilty to violating N.J.S.A. 2C:37-2(a)(2), which

provides that "[a] person is guilty of promoting gambling when he knowingly":

Engages in conduct, which materially aids any form of
gambling activity. Such conduct includes but is not
limited to conduct directed toward the creation or
establishment of the particular game, contest, scheme,
device or activity involved, toward the acquisition or
maintenance of premises, paraphernalia, equipment or
apparatus therefor, toward the solicitation or
inducement of persons to participate therein, toward
the actual conduct of the playing phases thereof,
toward the arrangement of any of its financial or
recording phases, or toward any other phase of its
operation.

Defendant contends he was actually innocent of promoting gambling

because he was a mere player. N.J.S.A. 2C:37-2(c) provides: "It is a defense

to a prosecution under subsection a. that the person participated only as a

player. It shall be the burden of the defendant to prove by clear and

convincing evidence his status as such player."

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 Defendant was prosecuted for conduct that occurred in 2005 to 2006.

He pled guilty to promoting gambling on August 17, 2006. He was sentenced

on November 3, 2006. His one-year probation term ended in 2007. Defendant

did not appeal his conviction or sentence. Despite having personal knowledge

of the nature and extent of the actions he undertook as part of his rampant

gambling, as well as the acts he did not commit, defendant waited until

September 30, 2019 to file his petition.

Subject to certain exceptions that do not apply to this case, a first

petition for PCR must be filed within five years after the date of entry of the

judgment of conviction being challenged. R. 3:22-12(a)(1). Except as

provided in the rule, this time limitation "shall not be relaxed." R. 3:22-12(b).

Moreover, the time bar may "be relaxed only under truly exceptional

circumstances." State v. Cummings, 321 N.J. Super. 154, 168 (App. Div.

1999) (citing Mitchell, 126 N.J. at 580).

"[A] PCR judge has an independent, non-delegable duty to question the

timeliness of the petition, and to require the rule's time restrictions pursuant to

Rule 3:22-12. Absent sufficient competent evidence to satisfy this standard,

the court does not have the authority to review the merits of the claim." State

v. Brown, 455 N.J. Super. 460, 470 (App. Div. 2018).

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 Here, the delay in filing the petition was not "due to defendant's

excusable neglect." R. 3:22-12(a)(1)(A). Defendant was not incarcerated, had

the financial means to hire legal counsel, and was aware of the underlying

facts and circumstances supporting his claim for PCR based on actual

innocence well before the five-year period expired. He considered filing the

petition years earlier but chose to wait until after Prosecutor Molinelli

resigned. Even then, defendant did not file his petition within one year of

Molinelli's resignation in January 2016. See R. 3:22-12(a)(1)(B). His petition

was filed thirty-two months later.

Moreover, "enforcement of the time bar [did not] result in a fundamental

injustice." R. 3:22-12(a)(1)(A). The mere player defense is an affirmative

defense that places the burden on "the defendant to prove by clear and

convincing evidence his status as [a mere] player." N.J.S.A. 2C:37-2(c); see

State v. Federico, 103 N.J. 169, 174 (1986) ("participation as only a player, if

established by clear and convincing evidence, is a defense to a gambling

prosecution").

Defendant has not met that evidential burden. As we have noted, his

testimony during the plea hearing refutes his claim that he was a mere player.

Defendant acknowledged he accepted bets for some of his employees, naming

two of them. He admitted to participating in "a pay-and-collect situation with

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both of those individuals and Elvis." Defendant acknowledged he maintained

written records of the bets that indicated the amount he needed to collect from

his employees to pay to Elvis. His testimony at the plea hearing provided a

more than sufficient factual basis for his plea and demonstrated that his

participation in the gambling scheme was not limited to the actions of a mere

player.

Unlike the recantation of an eyewitness who identifies a defendant or

scientific evidence that disproves defendant was the perpetrator, the facts on

which defendant relies to show he was a mere player, were not newly

discovered. The factual predicate for the relief sought was known far longer

than one year before the petition was filed. See R. 3:22-12(a)(2)(B).

Nor does this case involve a newly recognized constitutional right or

defense. See R. 3:22-12(a)(2)(A). N.J.S.A. 2C:37-2(c) was enacted by the

Legislature long before defendant's conduct in 2005 and 2006.

We further note that the plea agreement resolved the investigation of

defendant and his wife. The charges against his wife were dismissed.

Defendant pled guilty to a single offense and was sentenced within the

parameters of the plea agreement. There is no evidence in the record that the

BCPO was still prosecuting defendant and would continue that investigation if

defendant filed his PCR petition within five years of his sentencing date.

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Defendant's speculative fears that Prosecutor Molinelli might retaliate against

him if he sought relief from his conviction or the forfeiture of his assets were

unsubstantiated. Defendant's reference to Molinelli's alleged involvement in

the sale of forged sports memorabilia has no known connection to defendant.

Defendant filed his petition more than seven years after that five-year

period expired. The delay did not fall within any of the exceptions to the time

limitation imposed by Rule 3:22-12. Accordingly, his claims were clearly

time-barred and were properly denied without an evidentiary hearing.

III.

Defendant asserts that the five-year time limit for filing his petition

should be relaxed due to his claim of actual innocence. We are unpersuaded.

Under United States Supreme Court doctrine, a federal habeas corpus

petitioner is allowed, upon "a convincing showing of actual innocence . . . to

overcome a procedural bar to consideration of the merits of their constitutional

claims." McQuiggin v. Perkins, 569 U.S. 383, 386 (2013) (applying the

doctrine to the one-year statute of limitations governing first habeas petitions).

In order to proceed on a claim of actual innocence, a defendant must first

present (1) new, reliable evidence and (2) show by a preponderance of the

evidence that, given this new evidence, "it is more likely than not that no

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reasonable juror would have convicted him in light of the new evidence."

Schlup v. Delo, 513 U.S. 298, 327 (1995); accord McQuiggin, 569 U.S. at 399.

However, the doctrine is not constitutionally required; it "is grounded in

the 'equitable discretion' of habeas courts to see that federal constitutional

errors do not result in the incarceration of innocent persons." McQuiggin, 569

U.S. at 392 (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)). It permits

a federal court to consider claims even though a state court has procedurally

barred them. Id. at 394. We are aware of no authority – and defendant cites

none – for us to apply this federal equitable doctrine to override the clear

mandate of Rule 3:22-12. Moreover, Rule 1:3-4(c) prohibits a trial court from

enlarging the time limits specified in Rule 3:22-12.

We reject defendant's claim that the time-bar imposed by the Rule can be

circumvented by a claim of actual innocence under the facts and inordinate

delays in this matter. Defendant has not demonstrated "excusable neglect" or

that "enforcement of the time bar would result in a fundamental injustice." R.

3:22-12(a)(1)(A). Accordingly, his claims were time-barred. Brown, 455 N.J.

Super. at 470. "[L]ifting the five-year bar . . . under the present circumstances

would render the Rule largely meaningless." Mitchell, 126 N.J. at 576; see

also State v. Ellison, 448 N.J. Super. 113, 125, 127 (Law Div. 2016), aff'd o.b.,

455 N.J. Super. 280 (App. Div. 2018) (finding no excusable neglect or

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fundamental injustice where PCR petition was filed fourteen years after

sentencing, initially due to lack of knowledge of potential for civil

commitment but four years after the State initiated civil commitment

proceedings).

IV.

Relying on Timbs v. Indiana, 586 U.S. ___, 139 S. Ct. 682 (2019),

defendant argues that the forfeited funds must be returned as a matter of law.

We are unpersuaded.

Civil forfeiture actions are expedited. The State must file the forfeiture

action within ninety days of the seizure. N.J.S.A. 2C:64-3(a). On May 4,

2006, the BCPO filed a timely verified complaint for civil forfeiture of the

seized funds and assets pursuant to N.J.S.A. 2C:64-3(a), (b). The owners of

seized assets may contest the civil forfeiture action by filing an answer to the

complaint "in accordance with the Rules of Court." N.J.S.A. 2C:64-3(d). "If

no answer is filed and served within the applicable time, the property seized

shall be disposed of pursuant to N.J.S.A. 2C:64-6." N.J.S.A. 2C:64-3(e).

Neither defendant nor the other owners of the property contested the

forfeiture action. Instead, on November 3, 2006, defendant and the other

owners consented to the entry of an order for judgment in the civil forfeiture

action and forfeited three million dollars to the BCPO. The consent order

A-4556-19
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stated that defendant, his wife, and E-Media Plus "forfeit[ed] all their right,

title and interest in $3,000,000[] of the captioned defendant property to the . . .

[BCPO]" and "waive[d] any claim or cause of action they may have now or in

the future against the State of New Jersey [and] the [BCPO] . . . relating to the

seizure, forfeiture and retention of the defendant['s] property . . . ." That

waiver is enforceable. In turn, the judgment of conviction entered that same

day stated: "Defendant forfeited three million dollars."

In addition, claims by innocent owners for the return of seized property

are subject to the three-year statute of limitations imposed by N.J.S.A. 2C:64-

8, which provides:

Any person who could not with due diligence
have discovered that property which he owns was
seized as contraband may file a claim for its return or
the value thereof at the time of seizure within [three]
years of the seizure if he can demonstrate that he did
not consent to, and had no knowledge of its unlawful
use. If the property has been sold, the claimant
receives a claim against proceeds.

For example, a replevin action brought by an innocent owner to recover a

handgun seized by police and subsequently turned over to the county

prosecutor is subject the three-year statute of limitations imposed by N.J.S.A.

2C:64-8. Johnson v. Schneider, 212 N.J. Super. 442, 446-47 (Law Div. 1986).

Defendant knew of the seizure of the funds from his and his company's

bank accounts, and the seizure of the gift cards and gift checks, when the
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seizures occurred in 2006. Aside from any preclusive effect of the consent

order for final judgment of forfeiture, which has not been vacated, defendant's

claim for the return of the sized funds is clearly time-barred.

Moreover, the forfeiture proceeding was a separate in rem civil action

filed in the Civil Part. See State v. Seven Thousand Dollars, 136 N.J. 223, 233

(1994) ("to enforce forfeiture of derivative contraband the State must bring a

civil action . . . against the property sought to be forfeited"); Amboy Nat.

Bank, 447 N.J. Super. at 156 (stating that "a civil forfeiture action is brought

as an in rem proceeding against the property rather than as an action against

the owner of the property"); State ex rel. Cnty. of Cumberland v. One 1990

Ford Thunderbird, 371 N.J. Super. 228, 237 (App. Div. 2004) (noting that "a

forfeiture proceeding is typically commenced in the form of a civil action

complaint"). Indeed, the forfeiture action is not controlled by the outcome of

the related criminal prosecution. See N.J.S.A. 2C:64-4(b) ("the fact that a

prosecution involving seized property . . . terminates with no culpability shall

not preclude forfeiture proceedings against the property"); see also Amboy

Nat. Bank, 447 N.J. Super. at 157 (explaining that "the [forfeiture] statute does

not require that someone be convicted or even charged with an indictable

offense as a prerequisite to forfeiture") (citing Seven Thousand Dollars, 136

N.J. at 233-34). "In that action the State must prove by a preponderance of the

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evidence that the seized property was connected to unlawful activity." Seven

Thousand Dollars, 136 N.J. at 233.

Defendant and the other owners of the seized property had notice of the

forfeiture action, waived their right to contest it, and consented to the

forfeiture of $3,000,000. They are bound by the forfeiture. See Seneca v.

Bissell, 274 N.J. Super. 613, 618-19 (App. Div. 1994) (explaining that the

plaintiff could not properly bring a replevin action to recover seized funds

after signing an assignment of interest in the property).

More fundamentally, the forfeiture action is a separate civil proceeding.

Any application for relief from the judgment entered in the forfeiture action

must be filed under Rule 4:50-1 in the Civil Part. See State v. 1979 Pontiac

Trans Am, 98 N.J. 474, 480 (1985) (stating "forfeiture actions . . . are

conducted as in rem civil proceedings"). Defendant has not done so. A

motion for relief from a judgment or order based on excusable neglect or

newly discovered evidence must be filed within one year after the date the

judgment or order was entered. R. 4:50-2. A Rule 4:50-1 motion based on the

other grounds raised by defendant must be filed "within a reasonable time."

Ibid. Under either standard, the time to file a motion for relief from the

judgment has long since expired.

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 To the extent we have not specifically addressed any of defendant's

arguments, we conclude they lack sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(2).

Affirmed.

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