A video taken by a child that appears to show a Crystal Lake daycare owner yelling at and holding down a screaming, writhing, 11-month-old baby by his neck as she tried to change his diaper will be played at the woman’s trial, a judge has ruled.

“I’m not doing this with you. Are we going to change your diaper or not? I don’t play. ... You might want to give your mom a run for the money, but not me,” Ann Migliorato, 63, is seen and heard on the video yelling to the baby while other children in her care are nearby.

Eventually, the baby stops screaming and the video stopped.

Prosecutors have said Migliorato, also accused of illegally operating an unlicensed daycare, “fractured” the baby’s ribs while placing him in “a choke hold.” According to an indictment against her, she “forcefully applied pressure” to the baby’s torso, causing the baby “to stop breathing and go limp.”

Migliorato’s attorney, Russell Luchtenburg, who appeared via Zoom at Migliorato’s hearing on Wednesday, argued against showing the video at her trial. He said the video was “improper and a violation” of the eavesdropping statute.

What occurred, Luchtenburg said, was a private conversation in the woman’s private home between her and the baby. The recording was illegally captured without her knowledge, and it should be suppressed, he argued.

Assistant State’s Attorney Ashley Romito said the recording does not violate the statute, and it was not a private conversation in a private residence.

“This does not even come close to a private conversation,” Romito said. “The recording here is clearly lawful and admissible. Under no set of circumstances would this be illegal.”

The 10-year-old child, who also was cared for at Migliorato’s daycare, took the video on a cellphone because she knew what Migliorato was doing to the baby was wrong, and she wanted to show her mom, Romito said. After seeing the video, the child’s mother reported the incident to the Department of Children and Human Services, Romito said.

Migliorato, who has been in custody at the county jail since her arrest in April 2024, is charged with two counts of aggravated battery with permanent injury to a child younger than 13, Class X felonies, as well as unlawful operation of a daycare, McHenry County court documents show.

Should she be convicted on the Class X felonies, she could face six to 30 years in prison.

In ruling the video is admissible, Judge Tiffany Davis said its value as critical evidence outweighs its prejudicial impact. She cited case law, Illinois statute and the Constitution in denying the defense motion. The video was not eavesdropping; it was taken by a child and it captured what David called “verbal and physical abuse.”

“It was taken in an unlicensed daycare in a semi-private environment,” the judge said. “It was not a private conversation.”

At the time Migliorato was accused, her grandson, who worked at the daycare, was charged with violating the sex offender registry. Authorities said he failed to report his new job at a restaurant to police within the required three days, but this charge was later dismissed, records show.

Ann Migliorato is due back in court Dec. 30, at which point the judge could set a trial date.