Court: Albany rape and kidnap victim can sue rehab group that treated her attacker

The following is reprinted from an Albany Times Union article, the original can be found at:
https://www.timesunion.com/news/article/Court-Albany-rape-and-kidnap-victim-can-sue-17246224.php

ALBANY – A woman who was kidnapped and raped at knifepoint in a New Scotland Avenue apartment can proceed with her negligence lawsuit against the Altamont-based mental health and drug rehabilitation center that serviced her attacker as an outpatient, an appeals court ruled Thursday. In a 5-0 decision, appellate justices upheld a lower court ruling by acting Supreme Court Justice Kimberly O’Connor, who rejected the legal effort by Rehabilitation Support Services (RSS) staffers to dismiss the woman's suit.

The attacker, Jose Marlett, 43, is serving a sentence of 110 years to life in maximum-security Sullivan Correctional Facility in Fallsburg. In June 2019, an Albany County jury convicted him of eight counts of predatory sexual assault,[ve counts of rape, three counts of criminal sex act, one count of kidnapping and three counts of robbery.

In April, Steven DeBraccio, an attorney representing the RSS defendants, argued that the nonprofit corporation had no duty to control and supervise Marlett, a prior felon who attacked the woman on Jan. 9, 2016.

"The law cannot provide a remedy for every injury.,"

DeBraccio told the court. "No one doubts the severity of this crime and what has happened to (the victim). But legally, defendants — a stranger to (the) plaintiff — do not owe her a duty of care."

On Thursday, appellate justices unanimously disagreed. Their decision, authored by Justice Molly Reynolds Fitzgerald, said a December 2015 report revealed that RSS staff needed to confiscate a knife from Marlett, that he could not sit still and was “not doing well.”

Two days before Marlett raped and kidnapped the victim, RSS staff discovered alcohol in Marlett’s apartment. Marlett had minimally engaged in treatment, showed significant paranoia and agitation, was stressed over a former girlfriend, displayed suicidal thoughts and had masturbated while on the phone with RSS staff, the decision said.

On Jan. 7, Marlett was evaluated at Albany Medical Center Hospital, then taken to Capital District Psychiatric Center. On Jan. 8, Marlett was drunk, watching pornography and touching himself when speaking to RSS staffers. RSS staff scheduled a meeting with Marlett three days in the future, the decision said.

On Jan. 9, Marlett first robbed a 61-year-old woman at knifepoint at Forest and New Scotland avenues. Then, Marlett abducted the plaintiff, 23, after she exited New Scotland Elementary School. He forced her into his apartment, tied her to a table with a telephone cord and belt. The woman broke free hours later and escaped.

"This was a ticking time bomb," Jason Frament, an attorney representing the victim, told the Third Department when the appeal was argued in April. "We know that (RSS) was aware that he was released."

In the decision, Fitzgerald said RSS staff were "fully aware of Marlett's rapid decompensation and unstable behavior and were in the best position to control and attempt to stop him from harming himself and others. Under these facts, we [nd that defendants failed to prove a lack of duty to take reasonable steps to prevent Marlett from harming members of the general public."

Presiding Justice Elizabeth Garry and Justices Sharon Aarons, Stanley Pritzker and Lisa M. Fisher supported the decision.

June 16, 2022 | Updated June 16, 2022 1:41 p.m.

Robert Gavin, Former Staff Writer