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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Michael DUHS, appellant.

Decided: August 25, 2009

ROBERT A. SPOLZINO, J.P., DANIEL D. ANGIOLILLO, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ. Lynn W.L. Fahey, New York, N.Y. (Katherine R. Schaefer of counsel), for appellant. Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Rooney, J.), rendered June 13, 2007, convicting him of assault in the first degree and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was indicted for assault in the first degree and endangering the welfare of a child based on allegations that, while babysitting his girlfriend's three-year-old son, he intentionally placed the child's feet and lower legs into a tub containing scalding water, resulting in severe burns.   At trial, the Supreme Court permitted an emergency room pediatrician who treated the child to testify that when she asked the child why he had not stepped out of the tub, the child said that the defendant “wouldn't let me out.”

 Contrary to the defendant's argument, the testimony of the emergency room pediatrician as to the child's statement was properly admitted into evidence.   The physician testified, at a pretrial hearing, that the statement was made in response to a question she asked in order to ascertain whether the child had any neurological injury or deficit.   Since the statement was thus germane to the child's diagnosis and treatment, it falls within an exception to the rule against hearsay (see People v. James, 19 A.D.3d 616, 617, 797 N.Y.S.2d 129;  People v. Dagoberto, 16 A.D.3d 595, 792 N.Y.S.2d 143;  People v. Goode, 179 A.D.2d 676, 677, 578 N.Y.S.2d 611).

 The admission of the statement also did not violate the defendant's constitutional right to confront the witnesses against him (see Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177;  People v. Rawlins, 10 N.Y.3d 136, 148, 855 N.Y.S.2d 20, 884 N.E.2d 1019, cert. denied --- U.S. ----, 129 S.Ct. 2856, 174 L.Ed.2d 601;  cf. People v. Goldstein, 6 N.Y.3d 119, 128-129, 810 N.Y.S.2d 100, 843 N.E.2d 727, cert. denied 547 U.S. 1159, 126 S.Ct. 2293, 164 L.Ed.2d 834;  People v. Rogers, 8 A.D.3d 888, 891, 780 N.Y.S.2d 393).   An out-of-court statement implicates the defendant's Sixth Amendment rights only when it is testimonial in nature (see Davis v. Washington, 547 U.S. 813, 821-822, 126 S.Ct. 2266, 165 L.Ed.2d 224;  People v. Rawlins, 10 N.Y.3d at 148, 855 N.Y.S.2d 20, 884 N.E.2d 1019;  People v. Nieves-Andino, 9 N.Y.3d 12, 15, 840 N.Y.S.2d 882, 872 N.E.2d 1188;  People v. Bradley, 8 N.Y.3d 124, 126-127, 830 N.Y.S.2d 1, 862 N.E.2d 79).   Here, however, the statement was not testimonial, as it was elicited in furtherance of the medical treatment necessary to address the ongoing emergency caused by the child's condition (see Giles v. California, --- U.S. ----, 128 S.Ct. 2678, 2692-2693, 171 L.Ed.2d 488;  Bush v. State, 193 P.3d 203, 213 [Wy];  State v. Schaer, 757 N.W.2d 630, 636-637 [Iowa];  Hester v. State, 283 Ga. 367, 371, 659 S.E.2d 600, 604-605).

The defendant's contention that the People's expert should not have been permitted to testify that the child's injuries were intentionally inflicted is unpreserved for appellate review (see CPL 470.05[2] ), and we decline to review it in the exercise of our interest of justice jurisdiction.

The defendant's remaining contentions are without merit.

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