STATE OF NEW JERSEY v. AMBOY NATIONAL BANK (L-5279-10, MONMOUTH COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0487-17T3
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 April 9, 2019 – Decided May 29, 2019
Before Judges Yannotti and Gilson.
On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-5279-10.
Ralph Peter Ferrara argued the cause for appellants
John R. Bovery, Jr. and Mary Bovery (Ferrara Law
Group, PC, attorneys; Ralph Peter Ferrara and Kevin
James Kotch, of counsel and on the briefs).
Carey J. Huff, Assistant Prosecutor, argued the cause
for respondent (Christopher J. Gramiccioni, Monmouth
County Prosecutor, attorney; Carey J. Huff, of counsel
and on the brief).
PER CURIAM
This is the second appeal in this civil forfeiture action. In 2010, the State
seized just over $846,000 from the bank accounts and residence of the claimants
John R. Bovery, Jr. (Bovery) and his wife Mary Bovery (collectively,
claimants). The State then filed a civil forfeiture action, contending that
claimants obtained the seized funds from illegal sports pools. In 2014, the trial
court granted summary judgment to the State finding that the seizure was valid
and the claimants had failed to show that any of the funds came from legal
sources. We affirmed that final summary judgment order. State v. Amboy Nat'l
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Bank Account No. XXX-XXXX-2, 447 N.J. Super. 142 (App. Div. 2016). The
Supreme Court denied claimants' petition for certification. State v. Amboy Nat'l
Bank Account No. XXX-XXXX-2, 228 N.J. 249 (2016).
In 2017, claimants moved to open and vacate the final summary judgment
order, contending that the State had admitted that just over $26,000 of the seized
funds had come from legal sources. Initially, the trial court granted that motion
because it was not opposed. Thereafter, the State moved for reconsideration. In
an order entered on June 23, 2017, the trial court granted the State's motion for
reconsideration and denied claimant's motion to open and vacate the final
summary judgment order. Claimants now appeal from the June 23, 2017 order
and a September 14, 2017 order denying their motion for reconsideration. We
affirm. The trial court properly granted the State's motion for reconsideration.
The court also correctly ruled that claimants had not established a basis to open
and vacate the prior final summary judgment order.
I.
We have previously detailed the facts giving rise to this forfeiture action
and the related criminal charges against Bovery. See Amboy Nat'l Bank
Account No. XXX-XXXX-2, 447 N.J. Super. at 148-54. Accordingly, we will
only summarize some of the more relevant facts and procedural history.
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For approximately twenty years, Bovery organized sports pools. There
were thousands of 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. The winners of the pools would then usually
pay a "gift" of approximately ten percent of the winnings to Bovery for operating
the pool. Bovery did not report the "gifts" he received as income to federal or
state taxing authorities.
Bovery deposited the entry fees from the pools into bank accounts he
controlled. In 2010, law enforcement officers became aware of Bovery's
operations, and they interviewed him. Thereafter, law enforcement officers
obtained warrants to seize three bank accounts held by claimants at Amboy
National Bank and to search their residence. When the warrants were executed
in September 2010, $846,039.14 was seized. Specifically, $436,845.86 was
seized from one bank account, $382,398.14 was seized from another account,
$17,950.14 was seized from a third account, and $8845 was seized from
Bovery's home and person. Of the monies seized, it was undisputed that
$722,000 came from players' entry fees and the remainder of approximately
$124,000 was alleged to be claimants' personal funds. The State maintained that
those personal funds were derived from illegal gifts for operating the sports
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pools. In contrast, Bovery contended that the $124,000 contained some money
that had been derived from legal sources.
After seizing the funds, the State instituted this forfeiture action. The
parties then engaged in and completed discovery. Thereafter, the State and
claimants filed motions for summary judgment. On June 10, 2014, the trial court
entered summary judgment in favor of the State and denied claimants' motion
for summary judgment. Claimants moved for reconsideration, but the trial court
denied that motion. Claimants then filed their first appeal.
As previously noted, in August 2016, we affirmed the grant of summary
judgment to the State. We held that the sports pools operated by Bovery were
illegal forms of gambling and that the State had demonstrated "a direct causal
connection between the seized funds and an indictable offense." Amboy Nat'l
Bank Account No. XXX-XXXX-2, 447 N.J. Super. at 162. In evaluating
whether the seizure of the entire $846,039.14 was appropriate, we concluded
that "claimants failed to present a genuine issue of fact that an identifiable
amount of the money seized was attributable to a legitimate source." Id. at 164.
In that regard, we noted that it was "claimants' burden to present 'sufficient
credible evidence to allocate the funds between illegal and legal purposes '" and
A-0487-17T3
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we determined that the claimants had not met that burden. Id. at 165 (quoting
State v. Seven Thousand Dollars, 136 N.J. 223, 238 (1994)).
While the forfeiture action was proceeding, related criminal charges were
brought against Bovery. In February 2011, a grand jury indicted Bovery for
first-degree money laundering, N.J.S.A. 2C:21-25, and third-degree promotion
of gambling, N.J.S.A. 2C:37-2. Following plea negotiations, in April 2016,
Bovery pled guilty to an amended charge of third-degree possession of gambling
records, N.J.S.A. 2C:37-3. In pleading guilty, Bovery requested, and the court
granted, a civil reservation that prevented his criminal admission from being
used as evidence in any civil proceeding, including the forfeiture action.
In accordance with his plea agreement, Bovery was admitted into the
Pretrial Intervention Program (PTI) for six months. Bovery completed PTI and,
on November 16, 2016, the criminal charge against him was dismissed.
On April 7, 2017, claimants filed a motion to vacate the final order
granting summary judgment to the State in the civil forfeiture action. On April
28, 2017, the trial court granted claimants' motion because there was no
opposition from the State. Accordingly, the court entered an order vacating the
June 10, 2014 order that granted summary judgment in favor of the State. The
trial court also reopened the forfeiture matter. In issuing the order dated April
A-0487-17T3
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28, 2017, the trial court did not give an oral or written statement of reasons
explaining its decision to vacate the summary judgment order and to reopen the
matter.
On May 17, 2017, the State filed a motion seeking reconsideration of the
April 28, 2017 order. In support of that motion, the State filed three
certifications and two affidavits from members of the Monmouth County
Prosecutor's Office, who represented that the State had not received the
claimants' motion seeking to vacate the final order and reopen the forfeiture
action.
On June 23, 2017, the trial court heard oral argument on the State's motion
for reconsideration. The court granted that motion and also heard argument on
claimants' motion to vacate the final order in the forfeiture matter. That same
day, the trial court issued a written statement of reasons and order memorializing
its decision to grant the State's motion for reconsideration and denying
claimants' motion to vacate the prior final order. Accordingly, the June 23, 2017
order vacated the trial court's order of April 28, 2017, and denied claimant's
motion to vacate the June 10, 2014 order that had granted summary judgment to
the State.
A-0487-17T3
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Claimants moved for reconsideration. The trial court, however, denied
that motion in an order entered on September 14, 2017. The trial court also
issued a written statement of reasons in support of its September 14, 2017 order.
II.
Claimants appeal from the orders entered on June 23, 2017 and September
14, 2017. On this second appeal, claimants make two primary arguments. First,
they contend that the State was properly served with their motion to vacate and,
therefore, there was no basis to grant reconsideration. Second, claimants argue
that the trial court erred in refusing to vacate the summary judgment order
entered on June 10, 2014. We are not persuaded by either of these arguments.
A. The State's Motion for Reconsideration
We will not disturb an order concerning a motion for reconsideration
absent an abuse of discretion. Brunt v. Bd. of Trs., Police & Firemen's Ret. Sys.,
455 N.J. Super. 357, 362 (App. Div. 2018). An abuse of discretion occurs "when
a decision is 'made without a rational explanation, inexplicably depart[s] from
established policies, or rest[s] on an impermissible basis.'" Ibid. (quoting Pitney
Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App.
Div. 2015)).
A-0487-17T3
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A party may move for reconsideration of an order in accordance with Rule
4:49-2 when (1) the court's decision was based on "a palpably incorrect or
irrational basis," or (2) the court failed to consider or "appreciate the
significance of probative, competent evidence[.]" Cummings v. Bahr, 295 N.J.
Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super.
392, 401 (Ch. Div. 1990)). "Alternatively, if a litigant wishes to bring new or
additional information to the [c]ourt's attention which it could not have provided
on the first application, the [c]ourt should, in the interest of justice (and in the
exercise of sound discretion), consider the evidence." Ibid. (quoting D'Atria,
242 N.J. Super. at 401).
Here, the trial court's decision to grant the motion for reconsideration to
the State was not an abuse of discretion for two reasons. First, the State
established that it did not receive notice of claimants' motion to vacate. There
is "a presumption that mail properly addressed, stamped, and posted was
received by the party to whom it was addressed." SSI Med. Servs., Inc. v. Dep't
of Human Servs., 146 N.J. 614, 621 (1996). The trial court here did not abuse
its discretion in finding that the State had rebutted the presumption of receipt.
In that regard, the State submitted affidavits and certifications from five
employees of the Monmouth County Prosecutor's Office, all of whom swore or
A-0487-17T3
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certified that they did not receive a copy of claimants' motion to vacate. Thus,
the trial court properly exercised its discretion to reconsider an order that it had
entered merely because there was no opposition.
Second, in entering its order dated April 28, 2017, the trial court did not
provide any reasons for granting the motion. Rule 1:7-4 states that the court
"shall" make written or oral findings of facts and state its conclusions of law on
every motion decided by a written order that is appealable as of right, and also
as required by Rule 3:29. Even when a substantive motion is unopposed, factual
findings and conclusions of law are required. See Allstate Ins. Co. v. Fisher,
408 N.J. Super. 289, 300-01 (App. Div. 2009) (explaining that trial courts are
not relieved from the obligation to make findings of fact and conclusions of law
when a substantive motion is unopposed). Without a statement of reasons, there
is no way for the parties or us to know what the basis of the trial court's decision
was in vacating the final order. Accordingly, the trial court did not abuse its
discretion in granting reconsideration of an order that was not supported by
findings of fact or conclusions of law.
B. Claimants' Motion to Vacate the 2014 Final Order Granting
Summary Judgment to the State
Claimants contend that they are entitled to vacate the final summary
judgment order entered on June 10, 2014. In that regard, they rely on Rule 4:50-
A-0487-17T3
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1(f), asserting that the State admitted that at least some portion of the seized
money was not associated with the illegal sports pools.
Appellate courts grant "substantial deference" to a determination to vacate
a judgment under Rule 4:50-1 and will not reverse the trial court's decision
"unless it results in a clear abuse of discretion." US Bank Nat'l Ass'n v.
Guillaume, 209 N.J. 449, 467 (2012). As previously noted, a decision
constitutes an abuse of discretion when it is "made without a rational
explanation, inexplicably depart[s] from established policies, or rest[s] on an
impermissible basis." Id. at 467-68 (quoting Iliadis v. Wal-Mart Stores, Inc.,
191 N.J. 88, 123 (2007)).
Here, claimants argue that they are entitled to relief from the June 10,
2014 final summary judgment order under subsection (f) of Rule 4:50-1.
Subsection (f) provides that a party is entitled to relief for "any other reason
justifying relief from the operation of the judgment or order." R. 4:50-1(f).
Such relief, however, "is available only when 'truly exceptional circumstances
are present.'" Guillaume, 209 N.J. at 484 (quoting Hous. Auth. of Morristown
v. Little, 135 N.J. 274, 286 (1994)). "In such 'exceptional circumstances,' Rule
4:50-1(f) is 'as expansive as the need to achieve equity and justice.'" Ibid.(quoting Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)). "In determining
A-0487-17T3
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whether relief is warranted under this section of the rule, courts focus on
equitable considerations." Nowosleska v. Steele, 400 N.J. Super. 297, 303 (App.
Div. 2008) (citing Little, 135 N.J. at 294). "Generally, relief under subsection
(f) is applied 'sparingly, in exceptional situations' to prevent grave injustice."
Id. at 304 (quoting Cmty. Realty Mgmt., Inc. v. Harris, 155 N.J. 212, 237
(1998)).
Here, claimants contend there are exceptional circumstances because the
State allegedly admitted that some of the seized funds came from legal sources.
The new evidence they cite for that contention is a certification from their
counsel. In claimants' counsel's certification, he contends that during plea and
settlement negotiations, which occurred in March 2016, the then-Acting
Monmouth County Prosecutor and several assistant prosecutors "admitted that
at least $26,795 of the [seized] money at issue was in no way associated with
the alleged illegal pools[.]"
The trial court correctly ruled that claimants' counsel's hearsay statements
concerning what members of the prosecutor's office stated during settlement and
plea negotiations were inadmissible. "[S]tatements made by parties during
settlement negotiations are generally inadmissible in subsequent proceedings,
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N.J.R.E. 408, as are most statements made during criminal plea negotiations,
N.J.R.E. 410." State v. Williams, 184 N.J. 432, 449 (2005).
Here, claimants contend that the statements by members of the
prosecutor's office demonstrate that the State "obstructed justice and acted in
bad faith." That contention is not supported by the record for two reasons. First,
claimants are seeking to admit hearsay statements made during settlement and
plea negotiations. Such statements are inadmissible. See N.J.R.E. 408
(providing that "evidence of statements or conduct by parties or their attorneys
in settlement negotiations, . . . including offers of compromise or any payment
in settlement of a related claim, shall not be admissible to prove liability for, or
invalidity of, or amount of the disputed claim"); N.J.R.E. 410 (providing similar
protections as Rule 408 to criminal defendants and the State in the context of
plea negotiations); Williams, 184 N.J. at 447-49; Kas Oriental Rugs, Inc. v.
Ellman, 394 N.J. Super. 278, 283, 288 (App. Div. 2007).
Second, the assertions in claimants' counsel's certification are rebutted by
the record. In an exchange of emails in March 2016, the State made clear that
it was not admitting that some of the seized funds were derived from legal
sources; rather, it was open, as part of settlement discussions, to consider
A-0487-17T3
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claimants' position that a relatively small portion of the seized funds may have
come from legal sources.
In short, having reviewed the entire record, and having considered the
contentions of the parties, we conclude that the trial court properly exercised its
discretion in granting reconsideration to the State and in denying claimants'
motion to vacate and open the previously-entered final order.
Affirmed.
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