        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

316
KA 12-01923
PRESENT: SMITH, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TINA M. SWITKOWSKI, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered June 20, 2012. The judgment
convicted defendant, upon a jury verdict, of reckless assault of a
child and reckless assault of a child by a child day care provider.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting her upon a jury
verdict of reckless assault of a child (Penal Law § 120.02 [1]) and
reckless assault of a child by a child day care provider (§ 120.01),
defendant contends that Supreme Court erred in failing to review
recordings that were received in evidence at the Huntley hearing.
Defendant failed to preserve that contention for our review, however,
inasmuch as defense counsel did not object after the court informed
defense counsel that it would “not need to hear that audio” because
the only legal issue being presented to the court was whether
defendant’s statements were voluntary (see CPL 470.05 [2]; see also
People v Voorhees, 2 AD3d 1447, 1448, lv denied 3 NY3d 663). We
decline to exercise our power to review that contention as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a];
Voorhees, 2 AD3d at 1448).

     Defendant further contends that the court erred in allowing
testimony at trial from two paramedics concerning prior, unrelated 911
calls. Although defendant objected to the testimony from one of the
paramedics, she did not object to the testimony of the other paramedic
and thus did not preserve her challenge to that paramedic’s testimony
for our review (see CPL 470.05 [2]). We nevertheless exercise our
power to review the contention with respect to the other paramedic as
a matter of discretion in the interest of justice because defendant
raises the same challenges for each paramedic’s testimony (see CPL
                                 -2-                           316
                                                         KA 12-01923

470.15 [6] [a]).

     The challenged testimony relates to evidence that the paramedics
had received other 911 calls from other callers involving similar
complaints to the one made by defendant, i.e., concerning a “child
choking on milk.” In responding to those calls, the paramedics
observed that the children were usually “fine” because milk “[was] a
liquid. [The children were] going to cough on it . . . [and]
breath[e] a little faster.” Those other children were “almost always
not in a respiratory arrest-type state.” The child in this case,
however, was lying, unmoving, on the floor, was hypoxic and had
bruising on the right temple. The paramedics had not seen a child who
was choking on milk exhibiting the symptoms that they observed with
regard to the subject child. We conclude that such testimony was
properly admitted because fact witnesses, such as the paramedics, may
be permitted to provide the jury with general background information
concerning their experience regarding a particular subject matter (see
People v Englert, 130 AD3d 1532, 1533, lv denied 26 NY3d 967; People v
Works, 177 AD2d 978, 978-979).




Entered:   April 29, 2016                      Frances E. Cafarell
                                               Clerk of the Court
