u201cLe Bassin aux Nymphu00e9asu201d (1899) by Claude Monet Manhattan District Attorney's Office

ALBANY ‑ A secretary to the former first lady of the Philippines, Imelda Marcos, asked the state’s highest court Tuesday to reverse a lower court’s ruling that found her guilty of criminal tax fraud over the secret sale of a Monet painting that had been in the Marcos home.

Vilma Bautista, who served as Marcos’ personal secretary in New York, is appealing a prison term of two to six years on tax fraud, false filing and conspiracy counts imposed in November 2013 by Manhattan State Supreme Court Justice Renee White in the appeal, People v. Bautista, 4930/12. In October 2015, the Appellate Division, First Department, vacated the conspiracy conviction (NYLJ Oct. 27, 2015) because White erred in reciting to the jury an opinion issued by the Supreme Court of the Philippines claiming that $658 million in assets held by Marcos belonged to the nation. The court affirmed, however, that Bautista was not deprived of a fair trial because of the prosecutor’s arguments in summation that she was told by the tax attorney to declare her income from the sale. The court also ruled that the interview notes were not Brady material.

Bautista was accused of hiding in her Upper East Side apartment paintings worth millions of dollars that used to be in Marcos’ New York townhouse belonging to the government of the Philippines. According to court documents filed by the district attorney’s office in Manhattan, Bautista sold a Monet painting for $32 million. Roughly $28 million in proceeds from the sale were then deposited into Bautista’s personal checking account.

When it was time to file her tax returns in 2010, Bautista failed to mention the sale of the painting or any of the proceeds she received to her tax preparer. She reported only $11,000 in adjusted gross income, on which she owed only $78 in state tax, but she should have paid the state over $2 million, the Manhattan District Attorney’s Office said in court documents. Bautista’s sole witness during the October 2013 trial was a tax attorney who testified that he believed Bautista sold the paintings on behalf of Marcos, and did not advise her that she would owe taxes on the proceeds she kept. The tax attorney also told a Philippine lawyer, Gavino Abaya, who had represented the Marcos family, that Bautista would have to report the commission she received from the sale of Monet’s “Le Bassin aux Nympheas” on her tax returns.

During summation argument, the prosecutors from the Manhattan District Attorney’s Office repeatedly said that the tax attorney had told Bautista that she had to report any income derived from the sale and that “she did not … follow the advice given because the advice was to pay your taxes.” Bautista’s lawyers, Susan and Fran Hoffinger—who have their own white-collar firm in New York City—objected that the prosecutor was misstating the testimony given by the tax attorney during the initial trial.

Bautista appealed the case to the Appellate Division, First Department, in 2015 arguing that the judge had mishandled objections during the defense’s opening statement and during summations and that she was entitled to a copy of the notes taken during the interview of the lawyer who had represented the Marcos family, who was not called as a witness, because they were Brady material.

In October 2015, the Appellate Division, First Department, vacated the conspiracy conviction writing, “The tax attorney did not testify that he had directly so advised defendant, but rather testified that he met with defendant to discuss the tax issues,” the panel in their ruling. “It is reasonable to infer that this information was conveyed to the defendant.”

Bautista’s lawyer, Nathan Dershowitz—who is listed as of counsel at the Law Offices of Amy Adelson in court documents—argued in documents before the Court of Appeals that “a prosecutor’s repeated factual misstatements, over objection, of a defense witness’s crucial testimony cannot be legitimized on the ground that the misstatements constituted a reasonable inference from the evidence when there was insufficient evidence in the record to support such an interference.” Assistant District Attorney Garrett Lynch argued for the people in the appeal.