An attorney for Anthony Marshall, the son of legendary socialite and philanthropist Brooke Astor, yesterday urged a state appeals panel to overturn what he insisted was an unfair conviction for looting millions of dollars from his mother's estate when she was mentally impaired and to spare his client a fatal prison term.
Marshall was sentenced to one to three years on one count of grand larceny in December 2009 following a jury trial before Acting Supreme Court Justice A. Kirke Bartley (NYLJ, Dec. 22, 2009).
An attorney who worked for him, Francis Morrissey, stood trial alongside him and was convicted of forging a document to further Marshall's alleged scheme. Both men were sentenced to one to three years in prison, though they remain free pending resolution of their appeals.
Editor's Note: This article has been updated to reflect a Correction.
Morrissey's attorney, William Zabel of Schulte Roth & Zabel, also appeared before the First Department to argue for his client yesterday.
Marshall's attorney, John Cuti of Cuti Hecker Wang, opened yesterday's argument by asking the Appellate Division, First Department panel to spare his client "a prison sentence that the record shows will likely hasten his death."
Marshall, 88, has been in poor health since undergoing open-heart surgery in 2008. He watched from a wheelchair as his attorney and the prosecutor argued about the conduct of his trial.
The case against Marshall centers on a codicil signed by Astor in January 2004 that gave Marshall full control of her $60 million residuary estate, which had previously been held in trust. Astor had already been diagnosed with Alzheimer's disease at that time. Marshall had already held power of attorney for his mother since 1978.
Cuti argued that the entire case against his client rested on the finding that Astor, who was 105 when she died in 2007, was mentally incompetent to execute that codicil, which effectively gave Marshall unlimited license to make "gifts" of the estate to himself. If she was competent, then everything Marshall did was legal, according to Cuti.
Cuti pointed to the fact that eight attorneys who worked with Astor had testified that she was competent.
Cuti also argued that there should have been a mistrial because Bartley had ignored a note from one of the jurors saying that she felt threatened by another juror, and asked to be dismissed from the case. Though that juror did eventually join in the verdict, she later told a defense investigator that she felt pressured, Cuti said.