The opinion of the court was delivered by: Clark, J.
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on March 26, 2013
Angela M. Mazzarelli,J.P. Richard T. Andrias Leland G. DeGrasse Rosalyn H. Richter Darcel D. Clark, JJ.
Defendants appeal from the judgment of the Supreme Court, New York County (A. Kirke Bartley, J.), rendered December 21, 2009, convicting defendant Anthony Marshall, after a jury trial, of grand larceny in the first degree, grand larceny in the second degree (five counts), criminal possession of stolen property in the second degree (two counts), offering a false instrument for filing in the first degree (two counts), scheme to defraud in the first degree, conspiracy in the fourth degree (two counts), and conspiracy in the fifth degree, and imposing sentence. Judgment of the same court and Justice, rendered December 21, 2009, convicting defendant Francis Morrissey of forgery in the second degree, scheme to defraud in the first degree, conspiracy in the fourth degree (two counts), and conspiracy in the fifth degree, and imposing sentence.
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 defendant Anthony 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.
Defendant Anthony 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 ...