Opinion
March 13, 1992
Appeal from the Steuben County Court, Scudder, J.
Present — Callahan, J.P., Boomer, Balio, Lawton and Davis. JJ.
Judgment unanimously affirmed. Memorandum: The prosecutor properly used the witness's prior statements and testimony in an attempt to refresh the recollection of the witness. The prosecutor did not improperly disclose their contents to the jury (see, CPL 60.35; People v Reed, 40 N.Y.2d 204, 207; cf., People v Barber, 179 A.D.2d 1002; People v Navarette, 131 A.D.2d 326, 328-329, lv denied 70 N.Y.2d 705). Contrary to defendant's contention, the prosecutor neither implied that the witness's prior statement and testimony could be considered as evidence in chief nor asked leading questions of the witness in order to apprise the jury of the gist of her prior statement and testimony. The trial court did not err in allowing the prosecutor to direct leading questions to the witness, who was patently unwilling, reluctant and hostile (see, People v Marshall, 144 A.D.2d 1005, lv denied 73 N.Y.2d 893).
There is no merit to defendant's contention that the court's charge on sexual abuse in the first degree varied the theory of the prosecution's case or that the charge prejudiced defendant because defendant could have been convicted of that crime whether the victim was clothed or unclothed at the time of the alleged incident. "`Sexual contact' * * * includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing" (Penal Law § 130.00; see also, People v Wali, 161 A.D.2d 742; People v Scott, 124 A.D.2d 974, lv denied 69 N.Y.2d 717). Similarly, the People were not required to "prove more than those factual allegations [of the indictment] necessary to support a conviction" (People v Grega, 72 N.Y.2d 489, 497; see also, People v Rooney, 57 N.Y.2d 822, 823). The People, therefore, were not required to prove that the victim was unclothed at the time the sexual abuse was alleged to have occurred.
Finally, we conclude that, "viewed in totality and as of the time of the representation" (People v Baldi, 54 N.Y.2d 137, 147), the record demonstrates that defendant's trial counsel provided meaningful representation (see, People v Rivera, 71 N.Y.2d 705, 708-709).