                 NOT FOR PUBLICATION WITHOUT THE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
