Abusive Astor Heir Cannot Avert Prison Time

MANHATTAN (CN) - An appeals court refused to disturb the prison sentence awaiting 88-year-old Anthony Marshall, whom a jury convicted of plundering the $185 million fortune of his mother, socialite and philanthropist Brooke Astor, after she developed Alzheimer's related dementia.

"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," according to the opinion from the First Judicial Department for the New York County Supreme Court's Appellate Division.

"If defendant becomes terminally ill, the Legislature has provided a mechanism for release from prison on medical parole," the opinion adds.

Brooke Astor died in 2007 at the age of 105. The first allegations against Anthony Marshall for elder abuse were brought by his son, Phillip Marshall, in 2006, and eventually resulted in a scandalous five-month trial that featured a star-studded string of witnesses for the prosecution including Barbara Walters, David Rockefeller and Henry Kissinger.

In November 2007, three month's after Astor's death, a grand jury indicted Marshall and his attorney Francis Morrissey for "a scheme to defraud and related counts of conspiracy to commit larceny and false filing," according to the opinion. Marshall was also convicted on multiple accounts of grand larceny and in 2009 both men were sentenced to one to three years.

While Marshall already stood to inherit millions under Astor's existing will, he allegedly conspired with Morrissey to gradually amp up his inheritance after his mother's 2001 diagnosis with "dementia of moderate severity." Astor had already bequeathed to Marshall "all her real property" and had left him 100 percent of her residuary estate in a charitable remainder unitrust, "with the right to receive 5% of the value of that trust each year during his life, and the power to appoint the remaining principal to the charities of his choice."

Astor's disease progressed in 2003, Marshall "began pressuring his mother's long-time attorney to help him obtain a greater share of her assets," according to the opinion.

He then enlisted Morrissey to "orchestrate the termination of Mrs. Astor's long-time counsel" so Marshall could use his power of attorney to appoint an attorney Astor had never met, Warren Whitaker. The court found that those men amended Astor's will to eliminate "the requirement that any amount go to charity, giving Marshall the residuary estate outright."

Astor, a lifelong philanthropist, signed the change in 2004 "after a 20-minute meeting with Mr. Whitaker, who she had not previously met." Marshall and Morrissey then added a "third codicil" to the will that further "reduced the amount of money that was supposed to be given to the charities by approximately $5.75 million," according to the ruling.

Jurors convicted the duo of executing the changes, "knowing that Mrs. Astor was not capable of understanding or consenting to them." They also found that Morissey had actually forged "Mrs. Astor's name to the Third Codicil," according to the ruling.

Prosecutors also submitted evidence showing that, "in 2005, Marshall abused his position of trust under his mother's power of attorney to purloin more than $2 million by granting himself a retroactive pay raise." He used that money "to buy a 55-foot yacht" and to "pay the salary of his mother's social secretary who was really working for his theatrical company," which Marshall ran out of his mother's apartment, according to the ruling.

During 12-day-long deliberations after the trial, jurors submitted a note that said: "Due to heated argument, a juror feels personally threatened." After Marshall and Morrissey's conviction and sentencing, they moved to vacate on the basis of juror misconduct in 2010, but the court found no evidence that the juror who sent the note had been coerced.

The appellate court's decision last week affirms that finding.

"While the note indicated that a juror felt 'personally threatened' by a 'heated argument,' it did not indicate that there were actual threats of physical violence," Justice Darcel Clark wrote for a five-member panel.

Marshall also failed to support his dismissal arguments by claiming that, under "the law in effect at the time, the durable power of attorney executed by Mrs. Astor allowed him to make unlimited gifts to himself, without regard to whether they were in the principal's best interest," according to the ruling.

"The count charging grand larceny in the first degree does not allege that Marshall abused the power to make gifts to himself," Clark wrote.

Instead, it hinges on the fact that, "after Mrs. Astor's health deteriorated, Marshall improperly authorized a significant increase in the compensation he received for managing her finances," according to the ruling.

"We see no reason to upset the jury's conclusion that Marshall abused his power in this regard," Clark added.

The opinion does, however, reverse Marshall's conviction on one of the grand larceny counts related to having Astor's social secretary perform tasks for Marshall's theater production company.

Clark supported that finding by pointing to "evidence that Mrs. Astor supported Marshall's theater ventures," and "that there was no evidence to suggest that the secretary's work for Marshall caused her to forgo work she was supposed to do for Mrs. Astor."

This change, however, does not affect Marshall's sentence.

Marshall additionally failed to challenge his first-degree grand-larceny conviction "in the interest of justice," because of his "age, health, military service, public service, lack of a prior criminal history, and the nonviolent nature of the criminal conduct itself," according to the ruling.

"It is generally inappropriate to use the interest of justice as a device for granting dispensations from mandatory sentencing statutes," Clark wrote, adding that "there is no compelling or extraordinary factor warranting" such a finding.

Marshall's lack of a prior record, moreover, "is an ordinary circumstance that does not vitiate a prison term for obtaining millions of dollars through financial abuse of an elderly victim," the ruling states.

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