PEOPLE v. MUNQUIA (2005)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rios, J.), rendered May 29, 2003, convicting him of assault in the first degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant correctly contends that the prosecutor improperly impeached a defense witness about a recent arrest.  “Although a witness may be impeached upon cross-examination about certain convictions or specific criminal acts bearing on credibility ․ the fact of an arrest ․ is ‘not a permitted area for impeachment’ ” (People v. Miller, 91 N.Y.2d 372, 380, 670 N.Y.S.2d 978, 694 N.E.2d 61, quoting People v. Rodriguez, 38 N.Y.2d 95, 378 N.Y.S.2d 665, 341 N.E.2d 231;  see People v. Cook, 37 N.Y.2d 591, 376 N.Y.S.2d 110, 338 N.E.2d 619;  cf. People v. Daniels, 225 A.D.2d 632, 639 N.Y.S.2d 96).

 However, this error was harmless.   Given the overwhelming evidence of the defendant's guilt, there was no significant probability that he would have been acquitted but for the prosecutor's impeachment of the witness, who was not an eyewitness to the assault (see People v. Miller, supra at 381, 670 N.Y.S.2d 978, 694 N.E.2d 61;  People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787).   The prosecutor's improper reference to the witness's arrest during his summation was also harmless error (see People v. Diaz, 239 A.D.2d 518, 658 N.Y.S.2d 945).

The defendant's remaining contention is unpreserved for appellate review (see CPL 470.05[2] ), and we decline to review it as a matter of discretion in the exercise of our interest of justice jurisdiction.