By Renwick, J.P., Tom, Webber, Moulton, JJ.7728. Mary Ellen Von Ancken plf-ap, v. 7 East 14 L.L.C. def-res — Gordon & Haffner, LLP, Harrison (Steven R. Haffner of counsel), for ap — Moses & Singer LLP, New York (Jay R. Fialkoff of counsel), for 7 East 14 L.L.C., res — Solomon J. Jaskiel, Brooklyn, for Nest Seekers International LLC and Nest Seekers LLC, res — Order, Supreme Court, New York County (Debra A. James, J.), entered February 24, 2017, which granted defendants’ motions to dismiss the complaint, unanimously affirmed, without costs.Plaintiffs allege that defendants, the sponsor of a cooperative and its listing agent, made a material misrepresentation about the size of the apartment unit, and that they reasonably relied on that misrepresentation in purchasing the apartment.Specifically, plaintiffs allege that defendants prepared a floor plan, which accompanied the listing for the unit at issue, that stated that the unit was “~1,966″ square feet, when it was, in fact, approximately 1,495 square feet. Plaintiffs contend that the floor plan was incorporated into the offering plan by reference, and the offering plan, in turn, was incorporated into the purchase agreement. They rely on the following language contained in the offering plan:“Any floor plan or sketch shown to a prospective purchaser is only an approximation of the dimensions and layout of a typical apartment. The original layout of an apartment may have been altered. All apartments and terraces appurtenant thereto are being offered in their ‘as is’ condition. Accordingly, each apartment should be inspected prior to purchase to determine its actual dimensions, layout and physical condition.”Based on the alleged misrepresentation incorporated into the purchase agreement, plaintiffs assert claims for breach of contract and express warranty, fraud, aiding and abetting fraud, negligent misrepresentations and violation of General Business Law §§349 and 350.The doctrine of incorporation by reference “is appropriate only where the document to be incorporated is referred to and described in the instrument as issued so as to identify the referenced document ‘beyond all reasonable doubt’” (Shark Information Servs. Corp. v. Crum & Forster Commercial Ins., 222 AD2d 251, 252 [1st Dept 1995]). Here, the listing is not identified in any of the relevant purchase documents, let alone beyond all reasonable doubt, and therefore is not incorporated by reference. Thus, any alleged representation in the listing cannot form the basis of a breach of contract claim because it is not a part of the purchase agreement. No express warranty was made in the purchase agreement.Moreover, any purported representation or warranty is refuted by the clear terms of the purchase agreement, which contains a merger clause, states that no representations are being made by the sponsor, that the unit was being purchased “as is” and that the onus was on the buyer to inspect “to determine the actual dimensions” prior to purchasing (see Rozina v. Casa 74th Dev. LLC, 115 AD3d 506 [1st Dept 2014], lv dismissed 24 NY3d 1097 [2015]; Plaza PH2001 LLC v. Plaza Residential Owner, LP, 98 AD3d 89 [1st Dept 2012]).Reasonable reliance is an element of claims for fraud, aiding and abetting fraud and negligent misrepresentation (see Bernstein v. Clermont Co., 166 AD2d 247 [1st Dept 1990]; J.A.O. Acquisition Corp. v. Stavitsky, 8 NY3d 144, 148 [2007]). Plaintiffs cannot as a matter of law establish reasonable reliance on a representation concerning the condition of the apartment since they had the means to ascertain the truth of the condition (Bernstein at 248). Since, pursuant to the terms of the purchase agreement, plaintiffs had the opportunity to inspect and measure the apartment, their fraud and negligent misrepresentation claims were properly dismissed. Consequently, dismissal of the aiding and abetting fraud claim was also proper (see Kaufman v. Cohen, 307 AD2d 113, 125-126 [1st Dept 2003]).Finally, with respect to plaintiffs’ allegations based on purported representations made in the listing, we reject defendants’ argument that plaintiffs’ claims are preempted under the Martin Act. Allegations of affirmative misrepresentations such as those at issue here are not preempted under the Martin Act (see Bhandari v. Ismael Leyva Architects, P.C., 84 AD3d 607 [1st Dept 2011]; Assured Guar. [UK] Ltd. v. J.P. Morgan Inv. Mgt. Inc., 80 AD3d 293 [1st Dept 2010], affd 18 NY3d 341 [2011]). However, plaintiffs fail to set forth a viable claim under General Business Law §§349 or 350 as defendants’ purported representations do not fall within the type of deceptive acts, that, if permitted to continue, would have a broad impact on consumers at large (see Thompson v. Parkchester Apts. Co., 271 AD2d 311 [1st Dept 2000], lv dismissed 92 NY2d 946 [1998]). This dispute, involving the dimensions of an apartment and representations made regarding the size of that apartment, is unique to the parties to this transaction, and thus, does not fall within the ambit of the statute (id.). We have considered plaintiffs’ remaining arguments and find them unavailing.The Decision and Order of this Court entered herein on November 27, 2018 (166 AD3d 551) is hereby recalled and vacated (see M-493 decided simultaneously herewith).This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
By Renwick, J.P., Tom, Webber, Kahn, Moulton, JJ.7734. PEOPLE, res, v. Zhakariyya Muhammad, def-ap — Robert S. Dean, Center for Appellate Litigation, New York (Carl S. Kaplan of counsel), ap — Cyrus R. Vance, Jr., District Attorney, New York (John T. Hughes of counsel), for res — Judgment, Supreme Court, New York County (Robert M. Mandelbaum, J.), rendered June 24, 2016, convicting defendant, after a jury trial, of sexual abuse in the first degree and endangering the welfare of a child, and sentencing him to an aggregate term of 7 years, affirmed.On this appeal, defendant’s initial argument is that the trial court’s responses to notes sent by the jury on the day of the verdict were coercive of that verdict. Specifically, defendant maintains that the trial court gave a coercive response to a note sent by the jury on the day of the verdict by repeating the same Allen charge (see Allen v. United States, 164 US 492 [1896]) it had given the preceding day without providing any additional guidance, notwithstanding the jury’s specific request for it. Defendant further contends that the trial court coerced the verdict in responding to a note in which the jury requested to continue its deliberations that day by acceding to that request without addressing the scheduling conflicts some of the deliberating jurors had the following week, as first reported to the court in that same note. In addition, defendant maintains that in repeating the Allen charge without responding to the jury’s specific request for additional guidance, the trial court failed to “respond meaningfully” to the jury’s request (see People v. Malloy, 55 NY2d 296, 302 [1982], cert denied 459 US 847 [1982]).Defendant also contends that the court improperly provided the jury with written copies of the final charge to the jury, improperly considered charges of which defendant was acquitted in determining his sentence, and imposed an excessive sentence.With respect to the trial court’s responses to jury notes and instructions to the jury, on Monday, May 9, 2016, the first day of jury selection, the trial court told the prospective jurors that it anticipated that the jury would be “in a position to decide the case no later than the end of next week,” i.e., Friday, May 20, 2016. On Tuesday, May 17, 2016, the trial court distributed written copies of its final charge to the jurors and invited them to “read along” during its reading of the final charge and to take the written instructions into the jury room afterward. The trial court further instructed the jury that the “written copies [were] simply an aid to your absorbing and remembering [the court's oral] instructions” and that if “I deviate in my oral instructions, from the written instructions, in any way, it is the oral instructions you must follow.” The trial court further instructed the jury not to “allow your receipt of a written copy to lead you to believe that you may consider only certain portions to the exclusion of others” and that if anything was not understood, the jury must send a note out asking for clarification. Defense counsel raised no objection either to the distribution of the written copies or to the trial court’s instructions in that regard. The court then gave the jury its oral final charge, which was identical to the court’s written final instructions, and the jury then retired to deliberate. On the morning of Thursday, May 19, 2016, the third day of deliberations, the jury sent a note asking: “[W]hat is the process if we can’t come to a unanimous decision[?]” (Court Exhibit IX). The trial court responded by giving an Allen charge. The jury then continued its deliberations.The following morning, Friday, May 20, 2016, the jury sent a note stating: “We the jury are still having extreme difficulty coming to a unanimous verdict. We feel it might be helpful to re-hear your guidance from yesterday morning and any additional guidance you have.”(Court Exhibit XI).Defense counsel moved for a mistrial, and the prosecutor suggested a more forceful Allen charge. The court responded, “I don’t know what a stronger [Allen] charge would look like,” noting that he had previously given “the full strong [Allen] charge.” The court concluded, “I’m just going to give them the [Allen] charge. None of you have any suggestions as additional guidance… is that right?” Defense counsel answered, “That’s right.” The trial court then repeated its Allen charge to the jury a second time without offering any additional guidance.At 12:28 p.m., the jury sent out a further note, requesting readback of certain testimony of the complaining witness and her grandmother (Court Exhibit XII). The court provided the readbacks and then instructed the jury to break for lunch and to return at 2:15 p.m.When the jury returned, the court announced that “we’re going to need to break for the day at this point. So I will ask you to cease your deliberations.” The court then asked the jury to “please be back Monday morning at 9:30.” On returning to the jury room, however, the jury sent out another note (Court Exhibit XIII) stating:”We the jury request to continue deliberating until 5:00 PM. or 6:00 PM. because we are at a critical juncture[.] Also, multiple people have conflicts next week & they are -[First Juror] - out of state Monday & Tuesday[Second Juror] – out of country beginning Monday for three weeks[Third Juror] - out of country beginning Thursday[Fourth Juror] – out of state from Monday thru [sic]June 5th”(Court Exhibit XIII).Upon receiving Court Exhibit XIII, the trial court told the parties: “We will let [the jurors] keep deliberating.” At that point, defense counsel moved for a mistrial, arguing that the existence of the scheduling conflicts could result in last-minute pressure on the jury. The court responded that the jury had stated that it was at a critical juncture in its deliberations, knew the issues it had to address, asked for readback, and expressed the view that it could resolve the case if it were given a few more hours to deliberate that day.The trial court then read Court Exhibit XIII in the presence of the jurors and told them: “Your wish is our command. You may resume [your] deliberations.” The jury resumed its deliberations.At 4:35 p.m., the jury sent out a note stating that it had reached a verdict (Court Exhibit XIV). At the request of defense counsel, the court polled the jury, and each juror indicated consent to its verdict, which was not guilty of the two top counts of predatory sexual assault against a child and guilty of the counts of sexual abuse in the first degree and endangering the welfare of a child. Defense counsel made no further objections, and the court accepted the jury’s verdict.On or about June 9, 2016, defendant moved to set aside the verdict pursuant to CPL 330.30(2). In support of his motion, defendant submitted a sworn statement from one of the jurors (the statement juror). According to the juror’s statement, on the afternoon of Friday, May 20, 2016, after the court instructed the jurors to cease deliberations until the following Monday “without the court inquiring or instructing the jury as to what would happen if the entire jury could not reach a verdict within the next two to three hours,” the jurors “all began to speculate as to what could happen to the jurors if we could not arrive at a verdict before Monday.” The statement juror further averred that she had been the jury’s lone holdout for acquittal on the sexual abuse in the first degree count but, after the court’s announcement of its intent to adjourn deliberations to Monday, changed her vote from not guilty to guilty “because of the coercive pressure that was thrust upon me by the remaining jurors.” The court denied defendant’s CPL 330.30(2) motion, reasoning that the statement juror’s description of the pressure she felt from other jurors to change her vote could not be used to impeach the verdict.On this appeal, defendant does not challenge the trial court’s ruling on his motion to set aside the verdict. Rather, he relies on the sworn statement of the statement juror to support his claim that the trial court coerced the verdict by merely repeating the same Allen charge it had given the preceding day without offering any additional guidance in response to the jury’s request that morning and by allowing the jury more time to deliberate that day, as requested in Court Exhibit XIII, without directly addressing the scheduling conflicts of some of the jurors as set forth in the same note.We begin our inquiry by examining whether the trial court’s second Allen charge was, by its terms, or in the circumstances under which it was given, coercive of the jury’s verdict. The substance of an Allen charge is not coercive if it is “appropriately balanced and inform[s] the jurors that they [do] not have to reach a verdict and that none of them should surrender a conscientiously held position in order to reach a unanimous verdict” (People v. Hardy, 26 NY3d 245, 252 [2015]). Here, the trial court’s repeated Allen charge included an instruction that the jurors were to “make every possible effort to arrive at a just verdict,” thereby implicitly instructing the jurors that they were not required to reach a verdict if they did not all agree that the verdict was just. Further, the trial court advised the jury that it “was not asking any juror to violate his or her conscience or to abandon his or her best judgment.” Defendant raised no objection to the language of the Allen charge either time it was given. Thus, neither in the trial court nor on this appeal does defendant take the position that the language of the court’s Allen charge was inconsistent with the Hardy definition of a noncoercive charge.Moreover, the jury expressly requested to “re-hear” the court’s Allen instructions. Notably, this jury note did not advise the court of any deadlock. Rather, it was only a request for further guidance as to resolving present differences of opinion. The trial court repeated its Allen charge in response to that request, rather than at its own instance. Thus, both the language of the Allen charge and the circumstances under which it was repeated demonstrate that the charge was not coercive.Defendant further contends that the trial court coerced the verdict by acceding to the request made in Court Exhibit XIII for more time to deliberate on the day of the verdict without immediately addressing the scheduling conflicts set forth in the same jury note in which the request was made. The record reflects that in making its request for more time, the jury informed the court that it had reached a “critical juncture” in its deliberations. Although the better practice would have been to address the juror’s scheduling conflicts by attempting to devise a means to accommodate them, the only request the jury actually made was to be allowed to continue its deliberations until 5:00 p.m. or 6:00 p.m. that day because it was at a “critical juncture.” As the record reflects, the trial court construed Court Exhibit XIII as meaning that the jurors thought that they could quickly resolve any remaining differences among them and agree upon a verdict within hours that same day, and therefore permitted them to do so. Thus, there was no need for the court to address the traveling plans of some jurors for the following week because this did not appear to be a problem at the time. The court’s view was supported by the fact that after its rereading of the Allen charge that morning, the jury had sent Court Exhibit XII requesting the readback of testimony, indicating that its deliberations were continuing. Further, after the jury had requested the opportunity to deliberate until 5:00 p.m. or 6:00 p.m., and the court had granted that request, the jury did not send out any follow-up note inquiring as to the continuation of deliberations if the jury were unable to reach a verdict by 6:00 p.m. that evening. The jurors were fully aware that they could have done so, as indicated by the jury’s having sent out Court Exhibit IX the preceding day inquiring about what the process would be if the jury did not come to a unanimous decision. The jury did not bring to the court’s attention any doubts about or dissatisfaction with the court’s response to Court Exhibit XIII. The jurors’ advice to the court that they were at a “critical juncture” of the deliberations and their request that deliberations continue until 5:00 p.m. or 6:00 p.m. were clear indications of the likelihood that a verdict would be reached before the close of the day. Indeed, the jury was able to announce its verdict at 4:35 p.m., prior to the end of the additional period afforded for its deliberations.The cases cited by our dissenting colleague each involve clear instances of improper coerciveness not found in the acts of the trial court here (see People v. Diaz, 66 NY2d 744, 746 [1985] [singling out lone dissenting juror and questioning whether that juror's doubt was reasonable, as majority of jurors, who were "equally as intelligent" and "observant" and came "from equal backgrounds," had no doubt, and directing that deliberations "continue until such time [as] I decide that they should not continue”]; People v. DeJesus, 134 AD3d 463, 465 [1st Dept 2015] [directing juror solely responsible for his child's care to report for continued deliberations the following week notwithstanding juror's fruitless search for alternative child care]; People v. Nelson, 30 AD3d 351, 352 [1st Dept 2006] [after jury had engaged in more than two days of deliberations without sequestration and had received Allen charge after advising court at end of each day that it was deadlocked, directing jury to return next morning for further deliberations and to prepare for possible overnight sequestration if no verdict reached by end of following day]).Furthermore, even if we were to agree with our dissenting colleague that the court failed to provide a meaningful response to the request made in Court Exhibit XIII by not addressing the scheduling conflicts, such action would not constitute reversible error, as the court’s failure to respond to the jury’s request did not seriously prejudice defendant’s rights (People v. Jackson, 20 NY2d 440, 454-455 [1967], cert denied 391 US 928 [1968]; cf. People v. Lourido, 70 NY2d 428, 435 [1987] [defendant was seriously prejudiced by court's providing no response at all to jury's request for readback of victim's cross-examination]).Additionally, the court did not order the jury to continue its deliberations on Monday. Rather, the court’s announcement that the jury would cease its deliberations that Friday and continue them on Monday was issued prior to the court’s being advised for the first time, by way of Court Exhibit XIII, of the jurors’ scheduling conflicts. The court’s grant of the jury’s request in that note for more time to deliberate that afternoon effectively overrode the court’s earlier direction that the jury cease deliberations that day and continue them on the following Monday.Further, the statement juror’s description of feeling pressured into changing her dissenting vote would not normally present an exception to the general rule that a “verdict may not be impeached by probes into the jury’s deliberative process” (People v. Maragh, 94 NY2d 569, 573 [2000]; cf. Pea-Rodriguez v. Colorado, US __, 137 S Ct 855, 869 [2017] [narrow exception for "overt racial bias"]). This principle is especially applicable where, as here, the jury was polled at the taking of the verdict (see People v. Goode, 270 AD2d 144, 145 [1st Dept 2000], [posttrial statement by juror complaining of coercion not proper basis for impeaching verdict under CPL 330.30, in view of juror confirmation of the verdict upon polling of the jury], lv denied 95 NY2d 835 [2000]; People v. Redd, 164 AD2d 34, 38 [1st Dept 1990]).In this case, the trial court’s denial of defendant’s CPL 330.30 motion is not before us, because that issue has not been raised, but we are asked to consider this juror’s post-verdict statement as background evidence of coercion. Assuming, without deciding, that we may do so, the credibility of the statement is undermined by the record, which shows that the statement juror was polled at defense counsel’s request, and on her oath swore that the verdict accurately reflected her views. As noted, defense counsel raised no contemporaneous objection to the taking of the verdict.Defendant further asserts that, in repeating the Allen charge on the day of the verdict without providing the jury with the additional guidance it mentioned in Court Exhibit XI, the trial court failed to “respond meaningfully” to the jury’s request (see People v. Malloy, 55 NY2d at 302). Because defense counsel raised no objection to the trial court’s response at the time it was given, this claim is unpreserved and we decline to review it. As an alternative holding, we reject it. The jury’s specific request was that the court provide “any additional guidance you have.” Here, where the record makes clear that the trial court, after seeking suggestions for additional guidance from both counsel, had no such guidance to offer, “[t]he court was not obligated to go beyond the jury’s specific request” (People v. Jiminez, 244 AD2d 289, 289 [1st Dept 1997], lv denied 91 NY2d 927 [1998]). Moreover, the jury never stated that its concerns remained unsatisfied by the trial court’s rereading of its original instructions without any further instructions or guidance (see People v. Williams, 150 AD3d 902, 904 [2d Dept 2017], lv denied 29 NY3d 1038 [2017]).Defendant also challenges the provision by the court of written copies of its complete final jury charge. Counsel offered no objection when the court announced its intention to distribute the charge, or when the court invited exceptions to its charge, which included the detailed limiting instructions on the use of the written charge. Accordingly, this claim is unpreserved, and we decline to review it in the interest of justice (see People v. McFadden, 162 AD3d 501, 501 [1st Dept 2018], lv denied 32 NY3d 939 [2018]).Further, we reject defendant’s argument that the court’s distribution of written copies of the final charge without defense counsel’s consent constituted a mode of proceedings error not subject to preservation analysis. This is not a case such as People v. Miller (18 NY3d 704 [2012]), People v. Collins (99 NY2d 14 [2002]) or People v. Damiano (87 NY2d 477 [1996]), all of which involved mode of proceedings errors with respect to unauthorized annotations of or court instructions pertaining to verdict sheets in contravention of applicable law (see CPL 310.20). Neither is this a case where the trial court erred in providing the jury with written copies of a complete final charge, or portions thereof, over the defendant’s objection (cf. People v. Johnson, 81 NY2d 980, 982 [1993] [provision to jury of copies of entire charge over the defendant's objections violates CPL 310.30]; People v. Owens (69 NY2d 585, 591-592 [1987] [provision to jury of written copies of portions of jury charge over defendant's objection constitutes reversible error]). Here, where defense counsel gave implied consent and where the trial court provided the jury with careful and detailed instructions concerning the use of the written copies of the charge, and there is no showing of prejudice, preservation analysis is applicable (McFadden, 152 AD3d at 502).Additionally, defendant contends that this matter should be remanded for resentencing because the sentencing court improperly considered the counts of predatory sexual assault against a child, of which he was acquitted. Defendant concedes, however, that his trial counsel did not preserve this issue, and we decline to review it in the interest of justice. As an alternative holding, we reject it. When the court stated at sentencing that the trial evidence revealed that defendant “acted as a “predator,” it made clear that “defendant was acquitted of the predatory sexual assault against a child counts” and that it was using the term “predator” only “in the colloquial sense” (see People v. Rivers, 262 AD2d 108, 108 [1st Dept 1999] ["court carefully and explicitly stated on the record that it was imposing sentence solely upon the charges as reflected in the jury's verdict"], lv denied 94 NY2d 828 [1999]).We perceive no basis for reducing the sentence.All concur except Renwick, J.P. and Moulton, J. who dissent in part in a memorandum by Renwick, J.P. as follows:
