June 22 (Bloomberg) -- The son of late New York philanthropist and socialite Brooke Astor was taken to jail yesterday, more than three years after he was convicted of defrauding his mother.
Anthony Marshall, 89, 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 moved to vacate his conviction, claiming juror misconduct. State Supreme Court Justice A. Kirke Bartley Jr. upheld the conviction of Marshall and his co-defendant, lawyer Francis X. Morrissey, in July 2010. Marshall appealed.
A midlevel state appellate court affirmed the decision in March and New York’s highest court this month declined to hear the case. Bartley this week refused to let Marshall stay out of jail because of poor health and denied him a new trial based on the alleged juror misconduct.
Morrissey was taken to jail yesterday and Marshall surrendered in Manhattan this afternoon to begin serving his sentence. As his wife, Charlene, watched from the front row in tears, Marshall was taken out of court in a wheelchair by security officers following a brief appearance before Bartley.
Marshall declined an opportunity to speak to the court. The judge, saying he took “no pleasure” in fulfilling his duties, read a letter from Marshall’s estranged son Alex supporting his father and asking Bartley to spare him from jail.
“I strongly urge you to receive your son back into your life before it’s too late,” Bartley said. “Life is too short. I’m sure I don’t have to tell you that. I’ll leave that up to your consideration. I wish you the best.”
Manhattan District Attorney Cyrus Vance Jr. said in a statement that the prosecution of Marshall and Morrissey “raised public awareness of the silent epidemic of elder abuse.”
“The needs and rights of older Americans are too often forgotten or ignored, and their voices silenced,” Vance said. “This week, two defendants convicted of multiple felonies against an elderly victim have surrendered and will finally begin serving their sentences.”
Marshall’s attorneys, Kenneth Warner and John Cuti, said in a statement that the law imposing mandatory jail time for their client is “senseless and cruel.” Marshall has Parkinson’s disease and congestive heart failure and wakes up every night “gasping for air,” requiring an external oxygen supply, his lawyers said.
Marshall can’t walk, bathe, shave, dress or clean himself after using the toilet, “is subject to disorientation and confusion throughout the day and night and is at constant risk of falling if unattended.”
“He has suffered far more than enough,” his lawyers said in a statement. “Incarceration will simply make his final days more tortured and undoubtedly fewer in number. There is truly no just purpose for this punishment.”
Astor, who suffered from Alzheimer’s disease, died in 2007 at the age of 105. She was one of the last of the American branch of the Astors, a family whose financial and social prestige was once equal to that of the Rockefellers and the Morgans. Marshall, the product of her first marriage, is her only son.
Her third husband was Vincent Astor, who died in 1959. He was heir to the fur and real-estate fortune amassed in the 19th century by John Jacob Astor, who in his time was the wealthiest man in the U.S.
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 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 charity. He was motivated by fear that 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, Judi DeMarco, at the time an employee of Bloomberg LP, the parent of Bloomberg News, told the judge she had been intimidated by another juror into convicting Marshall and Morrissey, according to Bartley’s July 2010 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.”
Marshall had asked the appeals 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 in March said 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 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 nonviolent 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.”
Marshall last week asked Bartley to keep him out of jail because of his poor health and moved for a new trial, citing a sworn statement from DeMarco that her guilty verdict was the result of “fear and intimidation.”
Defense attorneys said his poor health and a jail sentence could result in his imminent death, while prosecutors argued that the jails are equipped to give him the care he needs.
Bartley denied both motions, saying he was unmoved by DeMarco’s statement, and ordered Marshall to report for sentencing yesterday barring a last-minute reprieve from the appeals court that was denied late yesterday.
“I know something about fear and intimidation,” Bartley said yesterday, citing his prosecution of mob boss John Gotti in the 1980s. “It simply does not exist in this case.”
Marshall will first go to the infirmary at Rikers Island, the New York jail complex, Kenneth E. Warner, one of his attorneys, said outside court.
The New York State Department of Corrections and Community Supervision has medical staff standing by to evaluate Marshall before deciding where to send him so he can serve his sentence and receive medical care, Tom Mailey, a spokesman for the department, said in a phone interview.
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 firstname.lastname@example.org
To contact the editor responsible for this story: Michael Hytha at email@example.com