By Francesca Trianni
NEW YORK (Reuters) - The 89-year-old son of late New York socialite Brooke Astor on Monday lost a final plea that because of old age and illness he should avoid prison time for his conviction on charges he cheated his ailing mother before her death.
Manhattan Supreme Court Justice Kirke Bartley declined the defense request to throw out Anthony Marshall's 1- to 3-year sentence, noting that a higher court, the state Supreme Court's Appellate Division, already rejected Marshall's argument that he should be spared prison because of his age and illness.
Marshall's lawyer portrayed him as a frail man who would likely die if incarcerated. He was expected to report on Thursday to begin his prison term.
Marshall and his codefendant, Francis Morrissey, 72, a lawyer, were convicted in 2009 of grand larceny and other charges for keeping Marshall's mother in squalid conditions in her final years and of taking advantage of his mother's deteriorating mental state for financial gain. Morrissey was also due to start serving his 1- to 3-year sentence on Thursday.
The defense attempt to keep Marshall out of prison marked the latest development in a case that has shed a rare light on New York's high society and a family closely associated with "old money."
Astor was an heir of John Jacob Astor, who built a fortune on fur trade in the early 19th century. An active philanthropist, she was worth an estimated $200 million when she died in 2007 at age 105.
Last week, Marshall's attorney asked Bartley to throw out Marshall's 2009 conviction and grant a retrial after a juror recanted her guilty vote in a sworn statement. The judge was expected to decide Thursday whether to grant a new trial.
Marshall suffers from a heart condition and is bound to a wheelchair, defense lawyer Kenneth Warner told the court on Monday.
Marshall's inability to walk or feed himself makes him too frail for incarceration, and he would likely die if sent to prison, Warner said.
"It would be a cruel and unusual punishment to be sentenced to jail at his age, in his condition," Warner said. "The reality is that ... he is a feeble and frail 89-year-old."
Assistant District Attorney Elizabeth Loewy, chief of the Elder Abuse Unit, opposed the defense motion to keep Marshall out of jail.
"I feel compassion about Mr. Marshall's age," Loewy said. "But after he decided to steal thousands of dollars from Ms. Astor, after you commit such a crime, just because you're elderly, you don't throw your hands up and say, 'Show me mercy; I'm elderly."
(Reporting by Francesca Trianni; Editing by Daniel Trotta and Cynthia Osterman)