State of New Jersey v. Amboy National Bank Account ( 2016 )

                                         SUPERIOR COURT OF NEW JERSEY
                                         APPELLATE DIVISION
                                         DOCKET NO. A-0703-14T2
                                           APPROVED FOR PUBLICATION
                                               August 26, 2016
    ACCOUNT NUMBER                            APPELLATE DIVISION
             Argued September 22, 2015 – Decided August 26, 2016
             Before    Judges    Fisher,      Espinosa     and
             On appeal from Superior Court of New Jersey,
             Law Division, Monmouth County, Docket No. L-
                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
                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.
           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
       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%
       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.
       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
        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
        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
        8/25/10   $28,350
        8/26/10   $17,420
        8/27/10   $27,955
        8/30/10   $36,220
        9/7/10    $36,800
        Deposits to Account -4
        8/24/10   $22,210
        8/25/10   $21,930
        8/26/10   $18,640
        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.
       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
       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
                                                 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
           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.
    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
           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
    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.
           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.
           Claimants       admit    that     Bovery         "operated    sports     pools"     but
    deny that such pools were "illegal."                      We disagree.
           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
          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
          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.
          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
        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.
       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
         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
        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.
           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
           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
           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.
         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
        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-
       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.
    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.
                                             29                                 A-0703-14T2