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.

Cuti said that Bartley should have at least made an inquiry into the circumstances surrounding the note.

Justices Angela Mazzarelli, Richard Andrias, Leland DeGrasse, Rosalyn Richter and Darcel Clark heard yesterday’s arguments.

DeGrasse at one point asked Cuti whether, regardless of the codicil, Marshall didn’t owe his mother a fiduciary duty as her attorney-in-fact to act in her interest.

Cuti said that Astor had simply wanted to give the money to her son.

“She’s the one who knows what’s in her best interest,” he said. The codicil she signed was “consistent with a lifelong pattern of generosity to her only child.”

Zabel then got up to defend Morrissey, saying that his client was a victim of “pervasive, and I must say outrageous, prosecutorial misconduct,” making extremely inflammatory, prejudicial statements intended to villain-ize Morrissey throughout the trial. Morrissey was convicted of forging Astor’s signature on a later codicil.

Zabel said the evidence that the signature was forged at all was weak, and that in any case, there was no direct evidence that Morrissey had forged it except that he had possession of it for one day.

“They didn’t convict Mr. Morrissey because of forgery,” he said of the jury. “They convicted him because of the whole elaborate circus-like proceeding.”

Zabel was referring to the nearly six-month trial featuring a long list of witnesses, including Henry Kissinger and Barbara Walters, testifying about Astor’s apparent dementia.

Zabel’s partner Gary Stein also argued for Morrissey, echoing his contention that the trial was tainted by “just about every form of prosecutorial misconduct.”

Manhattan Assistant District Attorney Gina Mignola then made her case for the prosecution. She defended Bartley’s decision not to launch an inquiry into the juror’s note, saying that the judge was exercising his judgment in choosing not to interfere with jury proceedings.

“You don’t want to stick your nose in,” she said.

Mignola also said that investigators after the trial had learned that the juror had reconciled with the fellow juror who had seemed to threaten her.

Mazzarelli seemed skeptical, repeatedly asking whether Mignola was suggesting that the court could evaluate the judge’s decision not to investigate in light of facts that were learned only after the case concluded. Mignola said that the later facts simply showed that the judge’s instinct had been sound.

Mignola also argued that the court should not consider Marshall’s age or health, saying he would be well cared for in prison and that failing to imprison him would let him “get away with it.”

She said that, while Marshall had paid back $12 million in restitution, he had not acknowledged any wrongdoing.

“You can’t have it both ways,” she said. “I’m not guilty but please reduce my sentence anyway.”

The subject of what punishment would be appropriate for Marshall prompted Andrias to raise the question of whether his extraordinary wealth and privilege should be considered.

“Do we look at him as just another person? Because he’s not,” Andrias said.

Mignola agreed, saying that Astor had already lavished money and gifts on her son throughout his life.

“There’s no good reason to conduct yourself in this fashion,” she said. And she argued that the conviction and sentence should stand so “the society will understand that we here will defend our most vulnerable citizens.

In a brief rebuttal, Zabel summed up the heart of his objection to the verdict: “A very clever and articulate prosecutor took the evidence and made the jury hate these two men.”

The prosecutors for Marshall’s trial were Elizabeth Loewy, Joel Seidemann and Pierce Moser.

The case is People v. Marshall, 6044/07.

@|Brendan Pierson can be contacted at bpierson@alm.com.