Court upholds conviction, 110-year sentence of Albany predator

ALBANY –  A violent predator who kidnapped and raped a woman in his New Scotland Avenue apartment, just hours after he robbed another woman at knifepoint, will continue to serve a 110-year sentence in state prison.

An appeal by Jose Marlett, a repeat felon who was convicted in 2019 at trial in Albany County Court of all charges in a 20-count indictment, was rejected in a decision Thursday by the Appellate Division of state Supreme Court’s Third Department.

On Jan. 9, 2016, Marlett first robbed a 61-year-old woman at knifepoint at Forest and New Scotland avenues, and stole the woman’s debit card and Price Chopper AdvantEdge card. About 5 p.m., Marlett, armed with a kitchen knife, kidnapped a 23-year-old woman after she left her car near an elementary school, dragged her to his apartment and repeatedly raped her while armed with the knife.

After several hours, Marlett went outside with the woman's keys to move her car.  The woman covered herself in a towel, crawled out a bedroom window and ran to a local restaurant. Police arrested Marlett as he was returning to his apartment, the court decision said.

Both women were strangers to Marlett, who had served time in prison for robbery and later for violating parole, prosecutors said.

Marlett, whose attorney argued at trial that he was not guilty by reason of mental disease or defect – known as the insanity defense – remains convicted of charges that include predatory sexual assault, first-degree rape, second-degree kidnapping and criminal sex act, the legal term for sodomy.

Both the defense and prosecution called mental health experts as witnesses during the trial. The prosecution’s witness, psychologist Stuart M. Kirschner, testified that while Marlett had mental health problems, the defendant’s claim to have a so-called potpourri of symptoms was “preposterous, fabricated and the result of malingering and that the defendant was a habitual violent predator.”

He testified there was “not a shred” of evidence to support Marlett’s defense.

On Thursday, appellate justices rejected all of Marlett’s arguments, including a claim that acting Supreme Court Justice Roger McDonough was biased at trial against him and that the sentence was overly harsh.

“Although defendant has a history of mental illness and had a traumatic childhood, defendant also has a lengthy criminal history, and his horrific acts will have a lifetime impact on (the victim),” stated Justice Molly Reynolds Fitzgerald, who was supported in the ruling by Justices John Egan, Christine Clark, Stanley Pritzker and John Colangelo.

“As such, we find no abuse of discretion or extraordinary circumstances that would warrant a modification of defendant's sentence, which was within permissible statutory guidelines, in the interest of justice.”

Delmar lawyer Paul Connolly argued on behalf of Marlett. Assistant District Attorney Emily Schultz argued on behalf of District Attorney David Soares’ office. Assistant District Attorneys Shannon Sarfoh and Assistant District Attorney Caroline Murray prosecuted this case.