March 26 (Bloomberg) -- The son of late New York philanthropist and socialite Brooke Astor faces as long as three years in prison for defrauding his mother after a state appeals court upheld his conviction.
Anthony Marshall, 88, was convicted in October 2009 of grand larceny and other charges for changing his mother’s will while she was incompetent. He was sentenced to one to three years in prison for acts that included giving himself a $1 million raise for managing his mother’s money.
Marshall in February 2010 filed motions to vacate his conviction, claiming juror misconduct. New York State Supreme Court Justice A. Kirke Bartley Jr. upheld the conviction of Marshall and his co-defendant, lawyer Francis X. Morrissey, in July 2010 and Marshall appealed.
The Appellate Division’s First Department affirmed the conviction in a decision released today, saying the verdicts were “based on legally sufficient evidence and are not against the weight of the evidence.”
“The record amply supports the jury’s determination that defendants are guilty of a scheme to defraud Mrs. Astor by fraudulently changing her will via the codicils at a time when they knew her physical and mental condition precluded her from having the capacity to agree to any such changes,” the appeals panel said in a unanimous decision.
Astor, who suffered from Alzheimer’s disease, died in 2007 at the age of 105. She was the last of the American branch of the Astors, a family whose financial and social prestige was once synonymous with the wealth and power of the Rockefellers and the Morgans.
“This trial underscored the importance of prosecuting elder abuse, particularly financial fraud perpetrated by those close to the victim,” Erin M. Duggan, a spokeswoman for Manhattan District Attorney Cyrus Vance Jr., said in a statement.
Marshall, who had been free pending the appeal, was ordered to return to New York State Supreme Court in Manhattan for further proceedings.
“We are of course deeply disappointed in the decision, and we are exploring all of Mr. Marshall’s options,” his attorney, John R. Cuti with Cuti Hecker Wang LLP in New York, said in an e-mail.
Marshall had asked the court to throw out his first-degree grand larceny conviction, which carries a mandatory prison term, arguing that the durable power of attorney executed by his mother allowed him to “make unlimited gifts to himself, without regard to whether they were in the principal’s best interest,” according to the appeals court decision.
The appellate panel declined, saying that the charge didn’t allege that Marshall abused his power to make gifts to himself but that he improperly authorized a “significant” raise in his compensation that was disproportionate to the salary his mother had authorized.
Marshall had also asked the appeals court to throw out the first-degree grand larceny count because of his age, health, military service, public service, lack of prior criminal history and the non-violent nature of his criminal conduct.
The appellate panel said the state legislature has provided a way for terminally ill people to be released from prison on medical parole. It also disagreed with Marshall’s argument that the “substantial restitution” paid to resolve a dispute over Astor’s will is a “compelling factor.”
“We are not convinced that as an aged felon Marshall should be categorically immune from incarceration and it is generally inappropriate to use the interest of justice as a device for granting dispensations from mandatory sentencing statutes,” the appeals court said. “Further, Marshall’s age, along with the medical conditions presented, do not establish, based on the record before us, that incarceration will likely cause his death.”
The appeals court did throw out one of five counts of second-degree grand larceny against Marshall, saying that having a secretary employed by Astor do tasks for a theater production company he was operating out of her apartment didn’t constitute that crime.
Marshall’s inheritance was cut by more than half, to $14.5 million from $31 million, in a settlement over his mother’s estate reached in March 2012 that provides $100 million to charities including Manhattan’s Central Park, the New York Public Library and the Metropolitan Museum of Art.
Marshall was accused of taking advantage of his mother partly by trying to obtain millions of dollars she intended for charities. He was motivated by fear that his wife, Charlene, wouldn’t be left with enough money when he died, prosecutors said. Astor, who didn’t like her son’s wife, left her only coats and jewelry, they said.
One of the jurors in the case, at the time an employee of Bloomberg LP, the parent of Bloomberg News, allegedly told the judge she had been pressured into convicting Marshall and Morrissey due to intimidation by another juror, according to Bartley’s decision.
Bartley wrote in his 22-page ruling that the lack of sworn statements from her and the other jurors as well as her conduct after the verdict “all lead to the inevitable conclusion that her verdict was not a product of force or coercion and that the defendants received a trial by a fair and impartial jury.”
The appeals panel said the note didn’t indicate there were “actual threats of physical violence” and therefore didn’t show the juror was “grossly unqualified or engaged in substantial misconduct.”
“Although the more prudent course of action would involve an inquiry of the jurors, the court acted well within its discretion by denying defendants’ application for individual inquiries of the jurors and ‘in determining that supplemental instructions, as well as a break from deliberations, would be sufficient,’” the appeals court said.
The case is People v. Marshall, 06044-2007, New York Supreme Court, New York County (Manhattan).
To contact the reporter on this story: Chris Dolmetsch in New York State Supreme Court at 8969 or email@example.com
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