People v. Marshall

• Decision Date: 26 March 2013
• Citation: 106 A.D.3d 1,961 N.Y.S.2d 447,2013 N.Y. Slip Op. 02032
• Parties: The PEOPLE of the State of New York, Respondent, v. Anthony MARSHALL, Defendant–Appellant. The People of the State of New York, Respondent, v. Francis Morrissey, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

106 A.D.3d 1

961 N.Y.S.2d 447

2013 N.Y. Slip Op. 02032

The PEOPLE of the State of New York, Respondent,

v.Anthony MARSHALL, Defendant–Appellant.

The People of the State of New York, Respondent,

v.Francis Morrissey, Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

March 26, 2013.

Cuti Heckler LLP, New York (John R. Cuti and Eric Hecker of counsel), and Warner Partners, PC, New York (Kenneth E. Warner and Rhett O. Millsaps, II, of counsel), for Anthony Marshall, appellant.

Law Offices of Thomas P. Puccio, New York (Thomas P. Puccio of counsel), and Davis & Gilbert LLP, New York (Paul F. Corcoran and Dominick R. Cromartie of counsel), and Schulte Roth & Zabel LLP, New York (William D. Zabel, Gary Stein and Frank J. LaSalle of counsel), for Francis Morrissey, appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Gina Mignola and Amyjane Rettew of counsel), for respondent.

ANGELA M. MAZZARELLI, J.P., RICHARD T. ANDRIAS, LELAND G. DeGRASSE, ROSALYN H. RICHTER, DARCEL D. CLARK, JJ.

CLARK, J.

The issues on this appeal are whether: (1) the verdicts on each count are supported by legally sufficient evidence and are in accord with the weight of the evidence; (2) the evidentiary rulings, prosecutorial conduct, and jury instructions were proper; (3)the court's response to a juror's note during deliberations was proper; and (4) whether the grand larceny count against defendantAnthony Marshall, which carries a mandatory prison sentence, should be dismissed in the interest of justice.For the reasons discussed below, we find that defendant Marshall's conviction for grand larceny in the second degree under the eighth count of the indictment is against the weight of the evidence.We have considered the remainder of defendants' arguments and find them unavailing.

DefendantAnthony Marshall's mother, Mrs. Brooke Astor, inherited millions of dollars in cash and real estate upon the death of her husband, Vincent Astor, in 1959.During her life, Mrs. Astor received income from the Vincent Astor Trust, and she had a general power to appoint the corpus of the trust in whatever way she desired.Vincent Astor left the remainder of his fortune to the Vincent Astor Foundation, a philanthropic organization run by Mrs. Astor, who remained actively involved in the Foundation until 1997.

In 1978, Mrs. Astor hired her son to run the Astor office.Defendant Marshall's responsibilities included managing his mother's finances and affairs.He held this job continuously through June 2006.

Marshall was the primary beneficiary of Mrs. Astor's various wills.From 1960 through 1990, with minor exceptions, Mrs. Astor's will bequeathed to Marshall all her real property, and either left her residuary estate to him outright or, between 1970 and 1990, to a trust which he had liberal rights to invade or request invasion of to obtain the principal during his life with broad power of appointment upon her death.Mrs. Astor's will also appointed Marshall trustee and co-executor.

Although Mrs. Astor made certain changes to her estate plan in the early 1990s, Marshall retained his status as the primary beneficiary of her estate and continued to use Mrs. Astor's funds.In 1997, Mrs. Astor changed her will, leaving half of the residuary estate to Marshall in a charitable remainder unitrust (CRUT), but she did not make any additional changes related to Marshall or his appointments as trustee and co-executor.

In late 2000, Mrs. Astor was diagnosed with “mild” stage Alzheimer's disease.On February 2, 2001, Mrs. Astor appointed Marshall as her health care proxy.On the same day, she executed a new will undoing the change to the residuary estate made in 1997.Once again, Marshall was to receive 100% of the residuary in trust, 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.

On April 16, 2001, Mrs. Astor was diagnosed with dementia of moderate severity.Marshall asked her physician, Dr. Norman Relkin, if his mother remained competent to make a will.Dr. Relkin replied that although she had diminished capacity, this did not mean that she could not make decisions.He further stated that he could not project about what the future held for Mrs. Astor or attest to her legal competency.

On November 7, 2001, Mrs. Astor executed a codicil to her February 2001 will that increased Marshall's stake in the CRUT from 5% to 7% per year, and relieved him of his obligations to pay taxes on a $5 million bequest she had made to him earlier in the year.

Mrs. Astor's dementia progressed, and for the period from September 2003 through March 2004, there were approximately 68 instances of confusion and 46 instances of paranoia.

In 2003, Marshall began pressuring his mother's long-time attorney to help him obtain a greater share of her assets, more power to distribute her money to the charities of his choice, and a larger share of assets for his wife, if he should predecease his mother.

On December 18, 2003, Mrs. Astor's attorney supervised the execution of a codicil to her 2002 will, which gave Marshall the right to appoint 49% of the assets of the Vincent Astor Trust to charity (First Codicil).

Subsequently, Mrs. Astor's long-time attorney was discharged.DefendantFrancis Morrissey, an attorney hired by Marshall who helped orchestrate the termination of Mrs. Astor's long-time counsel, contacted attorney Warren Whitaker, who was then hired by Marshall using Mrs. Astor's power of attorney.At defendant's behest, Mr. Whitaker drafted a “Second Codicil,” which eliminated the CRUT and the requirement that any amount go to charity, giving Marshall the residuary estate outright.On January 12, 2004, Mrs. Astor signed the Second Codicil after a 20–minute meeting with Mr. Whitaker, who she had not previously met.

On March 4, 2004, Morrissey presented a “Third Codicil” with Mrs. Astor's signature, which further diverted millions of dollars from Mrs. Astor's favorite charities into the hands of defendants by, among other things, increasing the legal fees and compensation Morrissey would receive.This reduced the amount of money that was supposed to be given to the charities by approximately $5.75 million.Two members of Mrs. Astor's household staff signed the document attesting to her competency.

In 2006, Marshall's son Philip initiated a guardianship proceeding to protect Mrs. Astor's person and property.During those proceedings, Marshall filed an answer and cross petition that allegedly included false information about money he had received from his mother.

In November 2007, the grand jury handed down an indictment charging both defendants with a scheme to defraud and related counts of conspiracy to commit larceny and false filing.In addition, Marshall was charged with multiple counts of grand larceny, possession of stolen property, and falsifying business records and Morrissey was charged with forgery and possession of a forged instrument.

At trial, the People sought to show that defendants engaged in a scheme to steal money from Mrs. Astor's estate.According to the People, defendants engaged in a scheme to enrich themselves by fraudulently changing Mrs. Astor's will.The People presented evidence that Morrissey and Marshall helped draft and execute the First and Second Codicils knowing that Mrs. Astor was not capable of understanding or consenting to them.They further maintained that Morrissey forged Mrs. Astor's name to the Third Codicil.

Moreover, the People submitted evidence 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 and using his mother's money to buy a 55–foot yacht, as well as to pay the yacht captain's wages, the expenses related to his wife's property in Maine, and the salary of his mother's social secretary who was really working for his theatrical company.They also sought to show that Marshall stole two valuable works of art from Mrs. Astor's home.

During jury deliberations, one juror sent a note stating: “Due to heated argument, a juror feels personally threatened.”The court instructed the jurors to conduct their discussions with civility and mutual respect for one another.After two more days of deliberations, the jury acquitted Marshall of two counts, but otherwise found defendants guilty as charged.

Prior to sentencing, Marshall filed a Clayton motion, seeking to dismiss the count of grand larceny in the first degree.The court denied the motion, and sentenced defendants to an aggregate term of one to three years in prison.

In February 2010, defendants filed motions to vacate, claiming juror misconduct and asserting that the juror who sent the note had been coerced.On July 29, 2010, the court denied the motion, and this Court subsequently denied defendants' motion for permission to appeal from that decision.Defendants' appeal from the judgment of conviction followed.

In examining the record for legal sufficiency, we must view the evidence in a light most favorable to the People to determine whether “there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt”( People v. Danielson,9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1[2007][internal quotation marks omitted] ).

Weight of the evidence review requires this Court to determine whether an acquittal would not have been unreasonable, and if so, to weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions ( seeDanielson,9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1).A verdict is against the weight of the evidence if it appears that the trier of fact failed to give the evidence the weight it should be accorded ( seePeople v. Bleakley,...