Chatham man pleads guilty to lesser charge in child porn case

HUDSON — The Columbia County District Attorney’s Office dropped two charges against a Columbia County man accused of possessing child pornography after the state Court of Appeals ruled last month that having topless photos of a teenage girl he raped did not constitute a crime.

Peter Wallin III, 28, of Chatham, was convicted after pleading guilty in Columbia County Court on Sept. 6 to endangering the welfare of a child, a class A misdemeanor. He is scheduled to be sentenced Nov. 7.

Wallin was originally charged on March 29 by the Columbia County Sheriff’s Office with promoting a sexual performance by a child, a class D felony; and possessing a sexual performance by a child under 16, a class E felony; and endangering the welfare of a child, a class A misdemeanor.

But the charges of promoting and possessing sexual performance by a child were dropped by the Columbia County District Attorney’s Office last week after a ruling by the state appellate court in case against Perry Pendell, Chief Assistant District Attorney James Carlucci said Tuesday.

Pendell, 53, of Chestertown, was convicted of a number of offenses in Columbia County Court in 2014 that stemmed from his alleged sexual contact over a period of several months with a 14-year-old girl that he met through an online adult dating service, according to court papers.

Pendell was later charged with criminal solicitation in connection with a murder-for-hire plot against the girl to prevent her from testifying at his trial. Police were alerted to the plot by an inmate he tried to hire to kill the girl.

Pendell was convicted on June 19, 2014 of criminal solicitation, nine counts of second-degree rape, second-degree criminal sexual act and four counts of possessing a sexual performance by a child, all felonies, and sentenced on Aug. 19, 2014 to 92 years in prison.

But three of the four counts of possessing a sexual performance by a child against Pendell were recently overturned by the state Appellate Court in a decision dated Aug. 23, according to court papers.

The state appellate division ruled that possession of a photo of the topless teenager on his phone did not constitute “lewd exhibition of the genitals,” under the state law. The judges overturned three counts of his 27-count guilty verdict. “Based upon the Appellate Division’s ruling in People v. Pendell, the photograph in this case did not depict a sexual performance by a child as defined in the Penal Law,” Carlucci said Tuesday. “Therefore, the defendant could not be prosecuted for that crime.”

In its decision to overturn the three counts against Pendell, the appellate court cited a 2001 case, the People vs. Pinkoski, against a mother who took photographs of her 6-year-old daughter. An indictment against Tabatha Pinkoski was dismissed because judges ruled the photographs were not considered lewd, according to court papers.

“The [state] Legislature was faced with how to define these crimes in such a way as to exclude such harmless commonplace actions as a parent photographing his or her infant children in the bathtub, etc.,” the court offered in its opinion.

“For behavior to be lewd, the actor must do something in addition to merely being nude. Simple, quiescent nudity, even in a very public place, has been held to not constitute the crime of public lewdness.”

A person is guilty of possessing a sexual performance of a child when knowingly has in his possession or control, or knowingly access with intent to view, any performance which includes sexual conduct by a child less than 16 years of age.

In the Pendell case, the appellate judges used the definition of lewd exhibition of the genitals to decide whether the images Pendell had broke the law. But the law does not define “lewd exhibition” in the statute.

To protect the victim in the Wallin case, Carlucci declined to disclose information that might reveal her identity, including her age and her relationship to Wallin.

“The Appellate Division’s decision was based upon the definitions in the [state] Penal Law, so maybe the law needs to be amended to address these types of photographs,” Carlucci said.

For his conviction on endangering the welfare of a child, Wallin faces up to a year in prison.

Photographs depicting teenage nudity can be damaging to the victims, said Julianne Baumann, program director and clinician of the Child Advocacy Center of Columbia and Greene Counties.

“The often unintended public exposure is highly traumatic and can have long-term negative effects and consequences that impact the victims indefinitely,” Baumann said. “The taking and distributing of these images is often part of additional crimes being committed against the victim, elevating the level of trauma for this individual.

“Often the victim feels humiliated and ashamed, contributing to depression, anxiety, thoughts of suicide, just to name a few symptoms of trauma,” Baumann said. “This needs to be taken into consideration when deciding the level of deviance and consequences for those who commit these crimes.”

To reach reporter Amanda Purcell, call 518-828-1616 ext. 2500, or send an email to apurcell@thedailymail.net, or tweet to @amandajpurcell.