ASPEN, Colo — In what was deemed an “unique” and “nuanced” case by the prosecution, an Aspen man charged by the Pitkin County health director for coughing in a woman’s face and violating the county’s public health order in late March pleaded guilty Thursday and received a deferred sentence.
In exchange for the plea agreement, Tom Patierno’s sentence has been deferred for six months and he will have six months of supervised probation. He also must perform 60 hours of useful public service, attend 18 hours of mental health counseling and write an apology letter to the victim. He was not fined and will pay an court costs.
If he meets all the requirements of the agreement and probation, the case will be dismissed and removed from his record.
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Patierno admitted to police he “got in the woman’s face” on March 29 and made at least a “coughing gesture” after she asked him to move over as they approached each other on the Rio Grande Trail.
He was originally charged with disorderly conduct by Aspen Police after his behavior toward the 68-year-old woman. Less than two weeks later, however, Pitkin County Public Health Director Karen Koenemann — through the county attorney’s office — charged Patierno with the misdemeanor count of violating the March 23 county public health order for not social distancing.
“Your Honor, it’s a nuanced area of statute, no doubt,” Pitkin County Assistant Attorney Richard Neiley said in Thursday’s court proceeding. “The charge came from the Pitkin County public health director.”
He said the deal was agreed upon by Koenemann and the victim, who both, Neiley said, wanted to ensure Patierno “participated in some level of mental health counseling in connection with the events that led up to the charge."
“There’s no doubt this offense took place at the beginning of the year when the emergence of the pandemic was new and it was a scary time,” Neiley said.
The case was heard in Garfield County after Pitkin County Court Judge Erin Fernandez-Ely recused herself. Her husband, John Ely, is the Pitkin County attorney and the charges came from the county’s health director.
“The facts of this case were of significant concern to the community and I’m sure to the victim in this matter,” Garfield County Judge Paul Metzger said Thursday. “I’m glad to hear the victim is in support of this type of resolution and this is a resolution.”
Patierno, who appeared via video conference, was contrite Thursday and reiterated it was a difficult time for him. As he told police after the incident, he said he was facing unemployment because of the pandemic. His attorney said Thursday he was also in a “contentious custody battle with an ex-girlfriend.”
He has since started a new job, the custody hearing has been resolved and he has started counseling, his attorney said.
“It was a scary time. A lot of things were up in the air. I was unsettled (and) pretty distraught,” Patierno said. “I’m glad I’ve had a string of personal success in my life. I’m feeling a lot more stable.”
He faced as many as 18 months in the Pitkin County Jail and a fine of as much as $5,000 for the public health order violation.
Patierno was “engaging in an ‘essential activity’ without complying with ‘social distancing requirements’” in violation of the public health order, according to court records. Koenemann said during the summer her decision to file the charge was based on the idea that Patierno’s act seemed to be intentional.
Koenemann told The Aspen Times in July that “the facts seem to indicate that this was a purposeful act that unfortunately impacted someone who is in a vulnerable population. We are looking at egregious violations and someone purposefully coughing on someone certainly fits that bill.”
The victim said she did not develop COVID-19 after the interaction.
“I want to thank the court and particularly the court staff for dealing with the unique situation where you had somebody other than the District Attorney’s Office entering a complaint on a criminal charge in this matter,” Neiley said Thursday.
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