A Manhattan judge will decide on Thursday whether to grant Anthony Marshall, son of socialite and philanthropist Brooke Astor, a retrial and vacate his one- to three-year prison sentence for stealing millions of dollars from his aging mother as her mental condition deteriorated.

Attorneys for Marshall and for one-time Astor estate attorney Francis Morrissey, who also faces prison appeared on Monday before Acting Supreme Court Justice A. Kirke Bartley (See Profile). The pair were supposed to begin serving their sentences on Monday, but that has been postponed until at least Thursday while the judge decides whether to grant a new trial.

Kenneth Warner represented Marshall and Barry Bohrer of Schulte Roth & Zabel represented Morrissey.

They claim that Marshall and Morrissey should get a new trial because of a newly submitted sworn statement from a jury member that convicted the two men, Judith DeMarco, saying she was pressured into voting guilty and was not truly convinced of the men's guilt. Although that juror complained she was being pressured during the trial, Bartley allowed the case to proceed after admonishing the jury about proper conduct.

Warner also argued that Marshall, 89, who suffers from Parkinson's disease and is confined to a wheel chair, should not be sent to prison because of his age and declining health. However, Bartley denied that motion from the bench.

Manhattan Assistant District Attorney Elizabeth Loewy, arguing for the prosecution, said the defense attorneys were trying to keep Marshall and Morrissey out of jail by "recycling" the same motions they had made in the past, at one point referring to the defense as a "perpetual motion machine."

She also said that the defense attorneys had "ambushed" prosecutors by submitting DeMarco's new statement late last week, only days before the defendants' sentences were to begin, and only a week after the Court of Appeals declined to a hear their appeal of their convictions.

Astor was diagnosed with Alzheimer's disease in 2000 and began to suffer worsening dementia in subsequent years. She died in 2007 at 104.

Between 2000 and 2007, Marshall, who had held Astor's power of attorney since 1978, oversaw the execution of a series of codicils modifying her will to give Marshall more control of her estate, as well as making cash gifts from the estate to himself.

The Manhattan District Attorney's Office alleged that Astor did not understand the codicils because of her dementia, and that Marshall took advantage of that to help himself to millions of dollars from her estate, buying himself a 55-foot yacht, among other things.

Marshall was convicted of 14 counts following a jury trial in December 2009, including a count of first-degree grand larceny, which carries a mandatory prison sentence.

The jury also convicted Morrissey, who was also sentenced to one to three years.

Both men appealed their convictions to the Appellate Division, First Department, and the appeals were argued together on Dec. 13 (NYLJ, Dec. 14). They argued that the conviction should be overturned because DeMarco complained during the trial that she had a heated disagreement with another juror and that she felt pressured into voting guilty, among other reasons.

The First Department rejected that argument in March, ruling that Bartley handled the situation adequately by admonishing the jury about appropriate conduct.

"Following the court's thorough admonitions to the jury, the problems appeared to resolve themselves, and there is no reason to believe that the ultimate unanimous verdict, confirmed by polling, was the result of coercion," the First Department wrote.

'This Is Not a Rehash'

The Court of Appeals declined to take the case earlier this month (NYLJ, June 11).

But Bohrer argued on Monday that the addition of DeMarco's sworn statement to the record changes the case and requires a retrial.

"What was not persuasive then is persuasive now," Bohrer argued on Monday. "What did not exist on the record then exists on the record now. This is not a rehash."

Loewy said that "the fact that Ms. DeMarco signed papers doesn't change the facts of this case."

Furthermore, she said, the defendants could submit more motions from prison, like most other defendants seeking retrials do.

Bartley said that he would not take any further submissions from the parties, but would decide the matter on Thursday.

Warner then argued that Marshall should not be sent to prison because of his health. However, Bartley said that issue had already been decided by the First Department.