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Astor son, 88, seeks to avoid prison in NY appeal

Thursday - 12/13/2012, 4:43pm  ET

By JENNIFER PELTZ
Associated Press

NEW YORK (AP) - An 88-year-old heir to a storied fortune, trying to stay out of prison in a case that shook New York society, asked appeals judges through his lawyers on Thursday to overturn his conviction on charges of plundering his mother's millions.

Anthony Marshall, the son of the late philanthropist Brooke Astor, watched from a wheelchair as his attorneys and a prosecutor argued about the conduct and outcome of his 2009 trial, which featured Henry Kissinger and Barbara Walters as witnesses and gave the public a peek behind the curtains of the social elite.

Marshall's lawyers argued that he was innocent and prison could kill him. A prosecutor said he deserved to be behind bars for exploiting a dementia-stricken woman. The appeals judges didn't immediately rule; their decisions often take months, and one judge noted Marshall's case is complicated in ways many are not.

"How do we strip away all these things _ class, money, the somewhat privileged and distinguished background _ and evaluate this situation we're in now?" state Supreme Court Appellate Division Justice Richard T. Andrias mused aloud.

Marshall, a former U.S. ambassador and Broadway producer, has been allowed to stay free while he appeals. If he loses, he faces one to three years in prison, the minimum for his high-level grand larceny conviction.

He was convicted of taking advantage of his aged mother's mental frailty to help himself to millions of dollars of her money _ and even take pricey artwork off her walls _ after she was diagnosed with Alzheimer's disease. Astor, whose charitable largesse with her $200 million fortune was recognized with the nation's highest civilian honor, was 105 when she died in 2007.

Marshall said he stole nothing: He acted with legal permission when he gave himself gifts with her money during her lifetime, and she knowingly changed her will to benefit her only child, his lawyers said.

The lawyers recapped those arguments Thursday and revisited an issue that rattled the trial: a juror's claim in that she felt "personally threatened" and wanted to be dismissed during deliberations. The trial judge responded by urging jurors to be civil. When the verdict was announced in court, the juror said she agreed with it, though she later told a defense investigator she signed onto it because she felt demoralized.

Marshall's lawyers say the trial judge at least should have interviewed the jurors individually; prosecutors say he was right not to pry into the deliberations. The appeals judges asked several questions about the juror issue, though it was unclear what consensus they might reach.

Besides raising questions about the trial, Marshall's lawyers are asking the appeals court simply to show him mercy, under a state law provision for courts to overturn jury verdicts "in the interest of justice." Marshall, who had a mini-stroke and fell down in a courthouse restroom during his trial, has paid more than $12 million in restitution, his lawyers note.

"You want to send this man to prison, after he's already paid back the money, so he can die there?" attorney John Cuti said.

Manhattan Assistant District Attorney Gina Mignola said the court should do exactly that, so "the society will understand that we here will defend our most vulnerable citizens.

"This was a very long and concerted effort to loot his mother's estate," Mignola said. "... It is not an innocuous crime."

The judges also are weighing an appeal from a now-disbarred trusts and estates lawyer, Francis X. Morrissey Jr., who was convicted of forging Astor's signature on a change to her will. Morrissey lawyer William Zabel argued Thursday that if the signature was phony, Morrissey knew nothing about it.

A five-year-long court fight over Astor's will ended in March with a settlement that freed $100 million for charities, including the Metropolitan Museum of Art and the city's public schools. It also cut Marshall's share by more than half; he ended up with $14.5 million.

Astor's third husband, Vincent Astor, was a great-great-grandson of real estate and fur magnate John Jacob Astor, one of the United States' first multimillionaires.

Brooke Astor was awarded the Presidential Medal of Freedom, the nation's top civilian honor, in 1998.

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Follow Jennifer Peltz at http://twitter.com/jennpeltz


(Copyright 2012 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.)