State of New Jersey v. Amboy National Bank Account

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0703-14T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,
APPROVED FOR PUBLICATION
v.
August 26, 2016
AMBOY NATIONAL BANK
ACCOUNT NUMBER APPELLATE DIVISION
XXX-XXXX-2 VALUED AT FOUR
HUNDRED THIRTY-SIX THOUSAND
EIGHT HUNDRED FORTY-FIVE
DOLLARS and EIGHTY-SIX CENTS
IN UNITED STATES CURRENCY,
AMBOY NATIONAL BANK ACCOUNT
NUMBER XXX-XXXX-4 VALUED AT
THREE HUNDRED EIGHTY-TWO
THOUSAND THREE HUNDRED
NINETY-EIGHT DOLLARS AND
FOURTEEN CENTS IN UNITED
STATES CURRENCY, AMBOY NATIONAL
BANK ACCOUNT XXX-XXXX-5 VALUED
AT SEVENTEEN THOUSAND NINE HUNDRED
FIFTY DOLLARS AND FOURTEEN CENTS
IN UNITED STATES CURRENCY, and
EIGHT THOUSAND EIGHT HUNDRED
FORTY-FIVE DOLLARS IN UNITED
STATES CURRENCY,

Defendants.
_______________________________________________________________

Argued September 22, 2015 – Decided August 26, 2016

Before Judges Fisher, Espinosa and
Rothstadt.

On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Docket No. L-
5279-10.
 Ralph P. Ferrara argued the cause for
appellants John R. Bovery, Jr. and Mary
Bovery (Ferrara Law Group, P.C., attorneys;
Mr. Ferrara and Joshua H. Beisler, on the
brief).

Carey J. Huff, Special Deputy Attorney
General/Acting Assistant Prosecutor argued
the cause for respondent (Christopher J.
Gramiccioni, Acting Monmouth County
Prosecutor, attorney; Ms. Huff and David M.
Fritch, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel and
on the brief).

The opinion of this court is delivered by

Espinosa, J.A.D.

This is an appeal from a civil forfeiture action. John R.

Bovery, Jr. (Bovery) organized sports pools for approximately

twenty years before he came under scrutiny by investigators. In

September 2010, the State obtained an order to restrain and

seize the contents of three bank accounts at Amboy National Bank

and a search warrant for Bovery's residence. Approximately

$846,000 was seized following execution of the order, search

warrant and Bovery's arrest. In challenging the forfeiture

action, Bovery admitted operating the sports pools and that

$722,000 of the money seized represented "entry fees" he

received from players but denied the pools were illegal.

Bovery and his wife, Mary Bovery (collectively, claimants),

appeal from orders that granted the State's motion for summary

2 A-0703-14T2
judgment affirming the seizure, and denied their motion to

segregate players' money.1 We affirm.

I.

The facts are largely undisputed. Bovery became the target

of a criminal investigation after admitting his activities to

detectives of the Monmouth County Prosecutor's Office in May

2010. Primarily, Bovery organized football survival pools but

he also organized baseball, golf, and basketball pools. There

were from one hundred to several thousand participants in the

pools who paid entry fees ranging from $20 to $100. During the

2009 to 2010 "pool cycle," Bovery collected just over $1.7

million in pool entry fees.

Initially, Bovery deposited the entry fees into his own

bank accounts. As the operation grew, Bovery opened joint

1
Claimants' case information statement identifies the denial of
their motion for reconsideration as an issue raised on appeal.
However, this issue was addressed for the first time in their
reply brief. Because this issue was not presented in claimants'
merits brief, it is deemed waived. See Gormley v. Wood-El, 218
N.J. 72, 95 n.8 (2014); Drinker Biddle & Reath LLP v. N.J. Dept.
of Law & Public Safety, 421 N.J. Super. 489, 496 n.5 (App. Div.
2011) (claims not addressed in merits brief deemed abandoned,
and could not properly be raised in a reply brief); see also
Pressler and Verniero, Current N.J. Court Rules, comment 4 on R.
2:6-2 (2016).

3 A-0703-14T2
accounts with his father2 because he believed his children would

be unable to obtain financial aid for college if he had to

disclose the value of his pool-related assets. Bovery testified

he always put the entry fees into the two accounts he held

jointly with his father because he "didn't want any lunatic to

think [he] had cash under the mattress."

Bovery stated the money he obtained from running the pools

was "the money I live on now actually," amounting to

approximately $110,000 per year. He described the funds he

received from pool participants as "'optional' gifts, . . .

sometimes from the winners and sometimes from the players in

general." He emphasized that these gifts were "always at the

discretion of the players and/or winners."

In 2009, Bovery began using a third-party website to

organize the pools. On his own website, he discussed at some

length the topic of gift pledges and how players were to make

such pledges. In one posting from August 2009,3 he described

changes he made to the procedures and explained he imposed a 10%

2
Bovery's father was not involved in the sports pools and had
requested that his name be removed from the bank accounts. He
was dismissed from the case by consent order in April 2014.
3
In a posting from August 2010, Bovery referred players to this
August 2009 post and one from August 2007 to describe the manner
in which he operated the pools.

4 A-0703-14T2
maximum on the gifts he would accept.4 He noted,

"[h]istorically, the winners of my pools have been very generous

with their gifts to me and my family and I have no complaints;

if I did, I would have stopped running these pools years ago."

He said he had "just 4 problems over 19 years who gifted less

than 10%." After instructing players on how to fill in the

fields on the website to make their pledges, he stated, "if you

put a number lower than 10[%] it will be your way of showing me

that you do not share my view on compensating pool managers."

He also told players that if they disagreed with gifting him

10%, "I strongly suggest you not participate in any of my pools,

it will simply help us both to avoid a very ugly situation

somewhere down the road." In an email, Bovery described his

contingency plan for dealing with winners who failed to "gift"

the 10%, that he would advise them they would receive a 1099,

which would result in their winnings being taxed.

Bovery did not report the "gifts" he received as income to

federal or state taxing authorities during the decades he

4
During the course of his testimony, Bovery stated that he
"understood the ten percent" from growing up in Jersey City,
where he knew "which shoemaker or which butcher was taking the
numbers." He said, "That's the way I grew up. I understood
bookkeeping, betting. I understood how it worked, right, you
know and take care of people with ten percent."

5 A-0703-14T2
operated the pools and did not report any of the payments made

to pool winners to state or federal taxing authorities.

After the detectives' initial interviews, two of the bank

accounts were subpoenaed and periodically checked. The accounts

were seized on the first day of the football season before the

start of any game. A detective testified the prosecutor's

office waited to obtain and execute the search warrants because

they "wanted to have as much evidence as possible."

Accounts number XXX-XXXX-2 (Account -2) and XXX-XXXX-4

(Account -4) were joint accounts in the names of Bovery and his

father. Account number XXX-XXXX-5 (Account -5) was a joint

account with Bovery's wife. According to Bovery, "[a]ll [three]

accounts were used to varying degrees for pool-related

purposes." Account -2 and Account -4 were "primarily used for

pool-related purposes," while Account -5 was "primarily used for

personal purposes."

The deadlines for pool participants to remit entry fees to

participate in his sports pools for the 2010/11 National

Football League season ranged from September 4 to 19, 2010. It

is undisputed5 that in August and September 2010, Bovery

5
The facts regarding these deposits were set forth in the
Statement of Undisputed Facts submitted by the State in support
of its motion for summary judgment and were not disputed by
claimants pursuant to Rule 4:46-2(b).

6 A-0703-14T2
deposited checks and money orders payable to him as entry fees

and totaling over $617,000 as follows:

Deposits to Account -2

8/24/10 $28,205
$28,765
$18,345

8/25/10 $28,350
$22,240

8/26/10 $17,420

8/27/10 $27,955

8/30/10 $36,220

9/7/10 $36,800
$47,190
$43,165

Deposits to Account -4

8/24/10 $22,210
$32,275
$16,800

8/25/10 $21,930
$39,255

8/26/10 $18,640
$25,535

8/30/10 $27,985

9/7/10 $29,630
$48,105 (96 checks and money orders)

At the time of the seizure the accounts from which the

money was seized were the only bank accounts held by claimants.

As Bovery admitted, Account -5 was also used for the deposit of

7 A-0703-14T2
entry fees, although to a lesser degree. By way of example, he

testified that eight checks totaling $1500 deposited into that

account in February 2009 were entry fees from "late payers."

When the warrants were executed on September 9, 2010,

$837,194.14 was seized from the bank accounts: $436,845.86 from

Account -2; $382,398.14 from Account -4; and $17,950.14 from

Account -5. In addition, $8510 in cash was seized from Bovery's

home and $335 was seized from Bovery's wallet incident to his

arrest. It is undisputed that the cash seized from Bovery's

home was withdrawn from Account -5. Of the $846,000 seized,

players' entry fees accounted for $722,000; $124,000 were the

Boverys' personal funds.

On October 20, 2010, the State commenced an action pursuant

to N.J.S.A. 2C:64-1 for forfeiture of the contents of the three

bank accounts as well as the cash seized from the Bovery

residence, alleging that all the money was used or intended to

be used in the commission of criminal activity.6 Claimants were

served with copies of the verified complaint.

6
Bovery was indicted for: third-degree promotion of gambling,
N.J.S.A. 2C:37-2 and N.J.S.A. 2C:2-6; and first-degree financial
facilitation of a crime, N.J.S.A. 2C:21-25 and N.J.S.A. 2C:2-6.
A motion to dismiss the indictment was denied in February 2012.
According to Promis/Gavel, Bovery was subsequently admitted to
the pretrial intervention program.

8 A-0703-14T2
 Claimants moved to separate player money, arguing the

State's failure to notify any players of the seizure violated

the notice provision of the forfeiture statute, N.J.S.A. 2C:64-

3(c), and therefore, the players' money should have been

separated from Bovery's personal money. Following oral

argument, the trial judge denied claimants' motion, citing a

lack of standing.7

The State moved for summary judgment, contending the funds

seized were subject to forfeiture pursuant to N.J.S.A. 2C:64-

1(a) because Bovery illegally operated and accepted proceeds

from various sports pools. Claimants cross-moved for summary

judgment. Claimants did not deny Bovery's role in the pool

organization or that he accepted remuneration from players.

They argued the seized money was not used in furtherance of

unlawful activity because the pools did not constitute illegal

gambling. The trial judge granted the State's motion and denied

claimants' motion, setting forth his reasons in a written

opinion. Claimants' motion for reconsideration was denied.

In their appeal, claimants argue the trial judge erred in

granting summary judgment to the State because there were

7
No written order memorializing the oral decision is included
in the record on appeal, and claimants state "[u]pon information
and belief, no written [o]rder was prepared denying the
[m]otion."

9 A-0703-14T2
material issues of fact (Point I). Specifically, as to the

$124,000 described as Bovery's personal funds, claimants argue

that a material issue of fact existed because in determining

these funds were subject to forfeiture, the trial court failed

to account for W-2 money deposited into the account. Claimants

further argue a material issue of fact barred summary judgment

because the State failed to establish the requirements of

N.J.S.A. 2C:37-2(b)(1). Claimants also contend Bovery's

acceptance of "gifts" from the players did not amount to

accepting bets from them and that the trial court erred in

holding Bovery materially aided an unlawful gambling enterprise

because he never accepted a bet. Claimants argue further that

the trial court erred in "ruling the State's seizure of player

money did not violate the notice provision of the civil

forfeiture statute" (Point II). Finally, claimants argue

summary judgment should not have been granted because the

seizure of accounts here exemplifies the potential for abuse in

the forfeiture statute. (Point III). We are unpersuaded by

these arguments and, further, find the argument raised in Point

III lacks sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E).

10 A-0703-14T2
 II.

In reviewing the summary judgment order, we view the facts

"in the light most favorable to" the claimants to determine "if

there is a genuine issue as to any material fact or whether the

moving party is entitled to judgment as a matter of law." Rowe

v. Mazel Thirty, LLC, 209 N.J. 35, 38, 41 (2012) (citing Brill

v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995)). We

review questions of law de novo, State v. Gandhi, 201 N.J. 161,

176 (2010), and need not accept the trial court's conclusions of

law. Davis v. Devereux Found., 209 N.J. 269, 286 (2012).

To defeat a motion for summary judgment, the opponent must

"'come forward with evidence' that creates a genuine issue of

material fact." Horizon Blue Cross Blue Shield of N.J. v.

State, 425 N.J. Super. 1, 32 (App. Div.) (quoting Brill, supra,

142 N.J. at 529), certif. denied, 211 N.J. 608 (2012); see R.

4:46-2(c). "An issue of fact is genuine only if, considering

the burden of persuasion at trial, the evidence submitted by the

parties on the motion, together with all legitimate inferences

therefrom favoring the non-moving party, would require

submission of the issue to the trier of fact." R. 4:46-2(c).

"Competent opposition requires 'competent evidential

material' beyond mere 'speculation' and 'fanciful arguments.'"

Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 426 (App.

11 A-0703-14T2
Div. 2009) (citation omitted). "[B]are conclusions in the

pleadings without factual support in tendered affidavits, will

not defeat a meritorious application for summary judgment."

Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App.

Div. 1999) (citation omitted); see also Puder v. Buechel, 183

N.J. 428, 440-41 (2005) ("[C]onclusory and self-serving

assertions by one of the parties are insufficient to overcome

the motion."); Cortez v. Gindhart, 435 N.J. Super. 589, 605-06

(App. Div. 2014), certif. denied, 220 N.J. 269 (2015).

III.

We begin by reviewing the forfeiture statute, acknowledging

that "[f]orfeiture statutes are generally disfavored in the

law," State v. Seven Thousand Dollars, 136 N.J. 223, 238 (1994),

and are "strictly construed against the State." State v. One

House, 346 N.J. Super. 247, 252 (App. Div. 2001); see also State

v. 1979 Pontiac Trans Am, 98 N.J. 474, 481 (1985). "The theory

of forfeiture is based on the misuse of the property rather than

resulting from the commission of an offense by its owner or

user." Seven Thousand Dollars, supra, 136 N.J. at 233 (citation

omitted). Accordingly, 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. Id. at 232-33.

12 A-0703-14T2
 N.J.S.A. 2C:64-1 to -9 authorizes civil forfeiture for two

categories of property.

The first category is designated prima facie contraband and

consists of "[c]ontrolled dangerous substances, firearms which

are unlawfully possessed, carried, acquired or used, illegally

possessed gambling devices, untaxed . . . cigarettes . . . [and]

untaxed special fuel." N.J.S.A. 2C:64-1(a)(1). Prima facie

contraband is automatically forfeited once seized by the State.

Seven Thousand Dollars, supra, 136 N.J. at 233 (citing N.J.S.A.

2C:64-2).

The money seized here falls into the second category of

property, known as derivative or non-prima facie contraband.

The property seized is innocent and is only subject to

forfeiture as a result of its association with unlawful

activity. Ibid. The statute authorizes forfeiture of

"[p]roperty which has become or is intended to become an

integral part of illegal activity, including, but not limited

to, money which is earmarked for use as financing for an illegal

gambling enterprise." N.J.S.A. 2C:64-1(a)(3). Unlike the first

category of property, the forfeiture of this property is not

accomplished upon seizure. To enforce forfeiture of derivative

contraband, "the State must bring a civil action within ninety

days of the seizure against the property sought to be

13 A-0703-14T2
forfeited," Seven Thousand Dollars, supra, 136 N.J. at 233

(citing N.J.S.A. 2C:64-3(a)), and prove a direct, causal

connection between the seized property and the unlawful activity

by a preponderance of the evidence. Id. at 234-35.

The court then conducts a fact-specific analysis to

determine whether the State has established a direct, causal

connection between the seized property and unlawful activity by

a preponderance of the evidence. Id. at 238; State v. One (1)

1979 Chevrolet Camaro Z-28, 202 N.J. Super. 222, 230 (App. Div.

1985). Once the State satisfies this evidentiary threshold,

"the burden shifts to the person challenging the forfeiture, the

'owner,' to show what portion of the money, if any, the court

should ascribe to legitimate uses." Seven Thousand Dollars,

supra, 136 N.J. at 238. "If the owner presents sufficient

credible evidence to allocate the funds between illegal and

legal purposes, the court must limit forfeiture to only those

funds connected with the illegal activity." Ibid.

Although the "unlawful activity" relied upon must be an

indictable crime rather than a disorderly persons offense, Seven

Thousand Dollars, supra, 136 N.J. at 233 (citing One (1) 1979

Chevrolet Camaro Z-28, supra, 202 N.J. Super. at 229-30), the

statute does not require that someone be convicted or even

charged with an indictable offense as a prerequisite to

14 A-0703-14T2
forfeiture. Id. at 233-34; see also N.J.S.A. 2C:64-4(b) ("The

fact that a prosecution involving seized property terminates

without a conviction does not preclude forfeiture proceedings

against the property. . . ."). "The absence of a requirement

that a person be charged with a crime before forfeiture is

allowed is consistent with the underlying nature of civil

forfeiture actions as being directed at the property itself and

not at any person." Seven Thousand Dollars, supra, 136 N.J. at

234. Moreover, the unlawful activity may only be "an intended

but not-yet-committed offense" or one committed in the past.

Ibid.

IV.

Claimants admit that Bovery "operated sports pools" but

deny that such pools were "illegal." We disagree.

A.

N.J.S.A. 2C:37-1(b) defines gambling as "staking or risking

something of value upon the outcome of a contest of chance or a

future contingent event not under the actor's control or

influence, upon an agreement or understanding that he will

receive something of value in the event of a certain outcome."

The definition of a "contest of chance" includes "any . . . game

[or] pool . . . in which the outcome depends in a material

degree upon an element of chance, notwithstanding that skill of

15 A-0703-14T2
the contestants or some other persons may also be a factor

therein." N.J.S.A. 2C:37-1(a).

Bovery's own statements regarding how the pools operated

establish that the pools fall within the statutory definition of

gambling. Players risked money, "something of value," on the

outcome of various sports games which qualify as "future

contingent events not under the actor's control," with the

understanding that the player who makes the most correct picks

will "receive something of value," money, at the conclusion of

the season or when all other participants have been eliminated

from the pool. See N.J.S.A. 2C:37-1(b). As the definition of a

"contest of chance" makes clear, the fact that the skill of the

athletes is a factor in the outcomes of the games or that the

pool participants' acumen in predicting outcomes may play a role

in the success of their picks is of no consequence.

New Jersey has a "clear and longstanding" "comprehensive

policy against gambling (except where specifically authorized by

the people)." Carll & Ramagosa, Inc. v. Ash, 23 N.J. 436, 445

(1957); Boardwalk Regency Corp. v. Attorney Gen. of N.J., 188

N.J. Super. 372, 376 (Law Div. 1982). The New Jersey

Constitution prohibits the Legislature from authorizing gambling

except through referendum and several constitutionally-

established exceptions, which include the State lottery, casinos

16 A-0703-14T2
in Atlantic City, horse racing, and certain raffles conducted by

charities and religious organizations. N.J. Const. art. IV, §

VII, ¶ 2.

Although sports pools may be popular and even considered

blameless activities by the general population, it is clear

those operated by Bovery do not fall within any of these

exceptions. Because these sports pools are a form of gambling

that is not sanctioned by the New Jersey Constitution, they are

illegal.

B.

We next review the evidence to determine whether the State

met its initial burden of showing by a preponderance of the

evidence that (1) there was a direct causal connection between

the money seized and the promotion of gambling and (2) the

promotion of gambling involved constituted an indictable offense

under N.J.S.A. 2C:37-2.

N.J.S.A. 2C:37-2(a) defines the offense of promoting

gambling and states in pertinent part:

A person is guilty of promoting gambling
when he knowingly:

(1) Accepts or receives money or other
property, pursuant to an agreement or
understanding with any person whereby he
participates or will participate in the
proceeds of gambling activity; or

17 A-0703-14T2
 (2) 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.

The required connection to illegal activity may be

established by "admitted past or planned illegal activity."

Seven Thousand Dollars, supra, 136 N.J. at 235. Bovery's

admissions regarding his past activity and what was planned for

the money seized from the bank accounts provide the required

connection to the offense of promoting gambling under both

subsections.

First, it is undisputed that Bovery received entry fees

from the players and "sometimes received optional gifts from the

participants of the pools" of approximately ten percent of the

entry fees or winnings. He received the money pursuant to an

agreement with the players that he would pool the funds received

and distribute winnings according to the procedures he

identified on his website. These admitted acts amounted to

participation in the proceeds of gambling activity, in violation

18 A-0703-14T2
of N.J.S.A. 2C:37-2(a)(1). Bovery's contention that the gifts

were "optional" does not immunize his conduct. In determining

whether conduct constitutes promotion of gambling, "it matters

not whether [a defendant] was compensated by a stipulated

percentage of the wager, or whether he received . . . 'voluntary

contributions' from the players." Chomatopoulos v. Roma DeNotte

Soc. Club, 212 N.J. Super. 447, 450 (Law Div. 1985).

Second, it is undisputed that Bovery organized a number of

different types of sports survival pools using both his own

website and a third-party website. He induced participation in

his pools by posting messages on his website and by sending

emails to prospective participants. This conduct materially

aided the sports pool, a form of gambling activity, in violation

of N.J.S.A. 2C:37-2(a)(2).

The next question is whether Bovery's activities rose to

the level of an indictable offense. N.J.S.A. 2C:37-2(b)

establishes the grading for this offense. Promoting gambling is

a disorderly persons offense unless certain criteria are met.

By "[e]ngaging in bookmaking to the extent he receives or

accepts in any one day more than five bets totaling more than

$1,000.00," a person is guilty of a third-degree offense.

19 A-0703-14T2
N.J.S.A. 2C:37-2(b)(1).8 One who "engag[es] in bookmaking to the

extent he receives or accepts three or more bets in any two-week

period" is guilty of a fourth-degree offense. N.J.S.A. 2C:37-

2(b). Bookmaking is defined as "advancing gambling activity by

unlawfully accepting bets[9] from members of the public upon the

outcome of future contingent events as a business." N.J.S.A.

2C:37-1(g).

Claimants argue that Bovery "did not accept a bet because

he had no financial stake in the outcome of any pools he

managed." This argument seeks to superimpose a requirement not

present in the plain language of the statute — that to be guilty

of promoting gambling, one must have a personal stake in whether

a specific bet wins or loses. We reject this argument.

Claimants cite no legal authority to support their

interpretation and, in fact, the factual premise for the

argument is substantially undermined by Bovery's testimony that

8
N.J.S.A. 2C:37-2(b)(2) provides an alternative basis for
promoting gambling to constitute a third-degree offense that is
inapplicable here.
9
Because "bet" is not defined in the statute, we give the word
its "ordinary meaning and significance." State v. Tate, 220
N.J. 393, 409 (2015) (citation omitted). Black's Law Dictionary
defines a bet as "[s]omething of value (esp. money) staked or
pledged as a wager," Black's Law Dictionary 144 (9th ed. 2010),
and wager as "[m]oney or other consideration risked on an
uncertain event." Id. at 1355.

20 A-0703-14T2
he accepted responsibility for covering the bets or entry fees

for persons who did not pay them. He stated he lost $3000 to

$5000 per year in collections because it was not his practice to

reduce the pot won by the amount of the entry fees players

failed to pay; that he would "eat the losses" and write off

"deadbeats."10

Alternatively, claimants seek to define a bet as "where a

player selected what they believed would be a winning team" and

argue that here, because the money was seized prior to the

commencement of the football season – no bets had yet been

placed. Claimants maintain that "for a bet to take place, an

amount must be staked on a particular outcome and the player

must also select a side of an event." According to claimants,

at the time the funds were seized, players had either not chosen

a team, had chosen a team but could change their team choice, or

could "decide not to play and request and receive a refund."

This argument also fails to create a factual issue that will

withstand summary judgment.

As we have noted, to establish the required nexus to

illegal activity, the State does not have to establish that the

seized funds constitute evidence that a crime has been

10
A balance sheet seized from claimants' residence during the
execution of the search warrant included an entry for "deadbeats
cushion" of $4000.

21 A-0703-14T2
committed. The connection to illegal activity may be satisfied

by showing the funds' relationship to prior offenses or activity

that is planned and never comes to fruition. Seven Thousand

Dollars, supra, 136 N.J. at 234. Proof that the money seized

was "intended to become an integral part of . . . an illegal

gambling enterprise" was sufficient. N.J.S.A. 2C:64-1(a)(3).

That standard was met here. The identification of over

$700,000 of the money seized as the entry fees for the 2010

football pool provided ample proof of a connection to an illegal

gambling enterprise and Bovery's admissions regarding his prior,

longstanding involvement in sports pools provided that

connection for the seized funds that were described as personal.

The record provides ample proof that the promoting gambling

conduct here rose to the level of an indictable offense. During

the 2009 to 2010 "pool cycle," Bovery collected over $1.7

million in pool entry fees ranging from $20 to $100. By way of

example, on September 7, 2010, Bovery made three deposits of

$36,800, $47,190 and $43,165 into Account -2. The $36,800

deposit consisted of eleven checks or money orders representing

player "entry fees." On the same date, he made two deposits to

Account -4, of $29,630 and $48,105, the latter deposit

consisting of ninety-six checks and money orders. These entry

fees constituted the "something of value" each player "stak[ed]

22 A-0703-14T2
or risk[ed] . . . upon the outcome of a contest of chance or a

future contingent event not under the actor's control or

influence," within the definition of gambling in N.J.S.A. 2C:37-

1(b). These admitted transactions are ample proof of an

indictable offense.

We therefore conclude the State met its initial burden of

proving by a preponderance of the evidence that there was a

direct causal connection between the seized funds and an

indictable offense.

V.

We next turn to whether the court erred in failing to

allocate the funds between illegal and legal purposes. As we

have noted, forfeiture will be limited to those funds connected

with the illegal activity "[i]f the owner presents sufficient

credible evidence to allocate the funds between illegal and

legal purposes." Seven Thousand Dollars, supra, 136 N.J. at

238. The record includes a copy of claimants' W-2s for 2010,

which report income of approximately $47,000 from their

employment. Claimants argue the State was required to conduct

"a forensic accounting of the entire $846,000 going in and out

of these accounts" to segregate the funds obtained through their

employment. However, it was claimants' burden to present this

argument and supporting evidence if they were to withstand

23 A-0703-14T2
summary judgment. Once the State made the initial requisite

showing, the burden shifted to claimants "to show what portion

of the money, if any, the court should ascribe to legitimate

uses." Ibid. They failed to do so and did not raise this

argument until they filed their motion for reconsideration.

As the State argues, claimants did not dispute that

Bovery's bank records and deposition testimony reveal that from

October 5, 2009 through January 4, 2010, he transferred at least

$43,679 of proceeds or "gifts" from his sports pools from

Account -2 and Account -4 to the "personal account." The State

reasons that because the amount in claimants' "personal" account

at the time of the seizure, $17,950.14, was less than the

$43,679 in pool proceeds Bovery transferred into that account,

claimants are foreclosed from arguing that any of the $17,950.14

seized constituted legitimate W-2 income, not linked to illegal

activity. Therefore, it is argued, the seizure of the contents

of the entire account was proper. See State v. Sparano, 249

N.J. Super. 411, 427 (App. Div. 1991) ("[T]here need not be a

'direct' connection between racketeering profits and the

acquired property sought to be forfeited, so long as the State

proves that the property was acquired by funds equivalent to the

fruits of the criminal activity.").

24 A-0703-14T2
 Our review of the record reveals that claimants failed to

present a genuine issue of fact that an identifiable amount of

the money seized was attributable to a legitimate source.

Pursuant to Rule 4:46-2(a), the State prepared a Statement of

Undisputed Facts in support of its motion for summary judgment.

As required by the rule, the state's factual assertions were

supported by citations to the record, which included Bovery's

testimony, claimants' discovery responses and other

documentation.

Paragraph 155 asserted that all the funds retained in

Account -2 and Account -4 "represent[ed] either funds collected

by [Bovery] as entry fees . . . or funds received/retained by

[Bovery] in the form of 'gifts' from pools participants."

Because claimants offered no response to this paragraph, the

facts contained therein were deemed admitted pursuant to Rule

4:46-2(b).

Paragraph 189 asserted that "at least $43,679" in sports

pool "gifts" was transferred from the "pool" accounts into

claimants' "personal" account. Claimants also failed to refute

the facts contained in this paragraph, thereby admitting the

assertions pursuant to Rule 4:46-2(b).

Claimants also presented no response to paragraphs in the

State's Statement of Undisputed Facts that asserted checks from

25 A-0703-14T2
Account -2 and Account -4, the accounts used primarily for the

pools, were used to pay personal expenses such as their

mortgage, their daughters' college tuition and Bovery's credit

card, that checks were drawn made payable to "cash" or to

Bovery, and at least one check drawn on a "pool" account was

deposited into Account -5.

Paragraph 186 of the State's Statement of Undisputed Facts

asserts that at the time of seizure, Account -2 and Account -4

held "$760,055 in funds derived as entry fees collected from

pool participants." Paragraph 189 asserted Bovery's "records,

prior statements, and sworn testimony and admissions discussed

supra show that [Bovery] also transferred at least $43,679 of

the 'gifts' . . . from Accounts Nos. []-2 and []-4 into Account

No. []-5, the account [Bovery] held jointly with" Mary Bovery.

Claimants offered no response to Paragraph 189 and, in

response to Paragraph 186, merely supported their denial by

saying, "The calculations are incorrect. See balance sheet

attached to the State's Motion for Summary Judgment as Exhibit

3." That "balance sheet," bearing a date of August 21, 2010,

was seized from claimants' home pursuant to the search warrant

and appears to be prepared by Bovery. It lists the assets in

"our checking" as $19,452.27 and "john pay 10/11 school year

pending bank deposit" as $1200.

26 A-0703-14T2
 In short, claimants' responses to the State's Statement of

Undisputed Facts were inadequate to create a genuine issue of

fact, see R. 4:46-2(b), much less satisfy claimants' burden to

present "sufficient credible evidence to allocate the funds

between illegal and legal purposes." Seven Thousand Dollars,

supra, 136 N.J. at 238.

VI.

In Point II, claimants argue the State violated the notice

provision of N.J.S.A. 2C:64-3 because it failed to provide

notice to the players whose entry fees were seized and that, as

a result, the trial court erred in ruling to the contrary. They

argue the players had an affirmative defense to the forfeiture

of their funds because N.J.S.A. 2C:37-2(c) excludes players from

prosecution for promoting gambling. They contend that, because

the players committed no crime, the seizure of the money they

paid as entry fees "violates notions of fundamental fairness."

This argument merits only limited comment. R. 2:11-3(e)(1)(E).11

The State was required to provide notice of the forfeiture

action "to any person known to have a property interest in the"

property sought to be forfeited. N.J.S.A. 2C:64-3(c) (emphasis

added). The persons known to have a property interest in the

11
We therefore need not address the standing issue raised by
the State and decided by the trial court.

27 A-0703-14T2
accounts that were seized were the account holders: Bovery, his

wife and his father. Each was given notice. The entry fees

were not segregated into separate accounts for each player; no

player was an account holder. Therefore, the notice provided by

the State adequately complied with the statutory provision.

We note further that claimants' argument rests upon a

faulty premise — that the State's right to forfeiture depends

upon the players' guilt of an offense. As we have noted, a

forfeiture action is brought against the property itself, and

not its owner or possessor because the theory of forfeiture is

based on "the misuse of the property." See Seven Thousand

Dollars, supra, 136 N.J. at 232-33 (citation omitted). Civil

forfeiture is permitted for property that is intended to become

part of illegal activity and requires neither criminal conduct

nor a conviction. See id. at 234.12 The fact that the players

committed no crime is therefore of no import. See id. at 233-

34.

12
In interpreting a prior forfeiture statute, the Supreme Court
stated "all property used for gambling was contraband, and such
property was construed to include all money earmarked and
segregated as part of a gambling operation." Spagnuolo v.
Bonnet, 16 N.J. 546, 558 (1954). The Court stated further that
the statute "could not be intended to have the effect of leaving
the legal title to such money in the gambler or player." Ibid.
Claimants contend the trial court's reliance upon Spagnuolo was
flawed because the earlier statute did not include a notice
provision like that in the present statute. We are unpersuaded
by this argument.

28 A-0703-14T2
 Even if the players could be considered owners of the funds

held in the accounts under others' names, the players' defense

to the criminal offense does not equate with a defense to the

forfeiture of the funds they paid to Bovery. N.J.S.A. 2C:64-

5(b) provides an "innocent owner" defense and states that

property seized pursuant to the civil forfeiture statute will

not be subject to forfeiture "if the owner of the property

establishes by a preponderance of the evidence that the owner

was not involved in or aware of the unlawful activity and that

the owner had done all that could reasonably be expected to

prevent the proscribed use of the property by an agent." See

also State v. One (1) Ford Van, Econoline, 154 N.J. Super. 326,

329-30 (App. Div. 1977), certif. denied, 77 N.J. 474 (1978). It

is beyond cavil that the players who paid entry fees to

participate in Bovery's sports pools were aware of the unlawful

activity that provided the basis for forfeiture.

Affirmed.

29 A-0703-14T2