NOT FOR PUBLICATION WITHOUT THE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,

v.

AMBOY NATIONAL BANK

ACCOUNT NUMBER 

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

Before Judges Fisher, Espinosa and 

Rothstadt.

On appeal from Superior Court of New Jersey, 

Law Division, Monmouth County, Docket No. L5279-10.

APPROVED FOR PUBLICATION

August 26, 2016

APPELLATE DIVISION

August 26, 2016
2 A-0703-14T2

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 
3 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).
4 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.
5 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."
6 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).
7 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 
8 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.
9 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."
10 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).
11 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. 
12 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.
13 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 
14 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 
15 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 
16 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 constitutionallyestablished exceptions, which include the State lottery, casinos
17 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
18 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 
19 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. 
20 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.
21 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.
22 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] 
23 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 
24 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.").
25 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 
26 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. 
27 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.
28 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. 
29 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.