
    The People of the State of New York, Respondent, v Martin Williams, Appellant. The People of the State of New York, Respondent, v Otis Fearon, Appellant. The People of the State of New York, Respondent, v Bruce Richardson, Appellant.
    Argued March 25, 1993;
    decided May 11, 1993
    
      POINTS OF COUNSEL
    
      C. Vernon Mason, New York City, and Valerie A. Hawkins for appellant in the first above-entitled action.
    I. The trial court committed reversible error by refusing to charge that intent is a necessary element of rape by forcible compulsion. (People v Burgess, 107 AD2d 703; People v Morrison, 58 AD2d 699.) II. The trial court committed reversible errors by admitting evidence against Mr. Williams of an uncharged crime and by refusing Mr. Williams cross-examination of this evidence. (People v Alvino, 71 NY2d 233.) III. The trial court committed substantial reversible error by refusing to hear the proffer of evidence demonstrating that complainant had previously engaged in group sex. IV. The aforementioned defects in the trial of this proceeding, together with the prosecution’s summation deprived Mr. Williams of a fair trial pursuant to the Federal and State Constitutions.
    
      Slotnick & Baker, New York City (Mark M. Baker, Barry I. Slotnick and Lori E. Mann of counsel), for appellant in the second above-entitled action.
    I. In order for the constitutionality of CPL 60.42 to be maintained, subdivision (5) thereof must receive scrupulous compliance; thus, because the Trial Judge, in response to defendant’s application to give an offer of proof, failed to make any determination upon factual findings that the interests of justice did not warrant admissibility, defendant’s confrontation and due process rights were totally abridged, thereby requiring a new trial. (People v Westfall, 95 AD2d 581; People v Reardon, 141 AD2d 869; People v Moore, 159 AD2d 521; People v Gagnon, 150 AD2d 918, 75 NY2d 736; People v Mandel, 61 AD2d 563, 48 NY2d 952, 446 US 949; People v Castell, 171 AD2d 561; People v Hamel, 174 AD2d 837; People v Kellar, 174 AD2d 848; Michigan v Lucas, 500 US 145, 111 S Ct 1743; People v Labenski, 134 AD2d 907.) II. A trial court must specifically charge a jury that intent is an element of rape in the first degree or sodomy in the first degree. (People v Burgess, 107 AD2d 703; People v Morrison, 58 AD2d 699; People v Santos, 105 AD2d 1135; People v Prise, 135 Misc 2d 363; People v Fenton, 166 AD2d 748; People v Bray, 99 AD2d 470; People v Anderson, 66 NY2d 529.)
    
      Richard E. Haftel, New York City, for appellant in the third above-entitled action.
    I. The trial court improperly excluded evidence that complainant had previously engaged in group sex. (People v Mandel, 48 NY2d 952; Davis v Alaska, 415 US 308; Chambers v Mississippi, 410 US 284.) II. The trial court committed reversible error by refusing to charge appellant’s mistake of fact defense. (People v Burgess, 107 AD2d 703; People v Morrison, 58 AD2d 699; People v Prise, 135 Misc 2d 363, 151 AD2d 787; People v Rypinski, 157 AD2d 260; People v Butts, 72 NY2d 746; People v Holt, 67 NY2d 819; People v Watts, 57 NY2d 299; People v Torre, 42 NY2d 1036; People v Steele, 26 NY2d 526; United States v Pedroza, 750 F2d 187.) III. The trial court improperly admitted evidence of an uncharged crime. (People v Molineux, 168 NY 264; People v Ventimiglia, 52 NY2d 350; People v Santarelli, 49 NY2d 241; People v Alvino, 122 AD2d 666; People v Ortiz, 134 AD2d 624; 
      People v Friedman, 205 NY 161; People v Bornholdt, 33 NY2d 75.)
    
      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Anthea H. Bruffee, Jay M. Cohen and Roseann B. MacKechnie of counsel), for respondent in the first, second and third above-entitled actions.
    I. Defendants have failed to preserve for this Court’s review their claims (1) that the trial court did not follow the proper procedure in denying their application to admit evidence of the victim’s alleged prior sexual conduct, and (2) that the court should have admitted this alleged evidence, which was barred by the "rape shield law”, as demonstrating a "pattern” of conduct. In any event, the trial court’s decision to preclude this alleged evidence was proper because it was irrelevant to the issue of whether the victim had been raped by defendants. (Batson v Kentucky, 476 US 79; People v Hernandez, 75 NY2d 350; People v Scott, 70 NY2d 420; People v Halbert, 80 NY2d 865; People v Mandel, 48 NY2d 952, 446 US 949; Zucker v Whitridge, 205 NY 50; Delaware v Van Arsdall, 475 US 673; People v Crawford, 143 AD2d 141, 72 NY2d 1044; Doe v United States, 666 F2d 43; People v Christopher, 65 NY2d 417.) II. The court’s charges on rape and sodomy in the first degree were correct statements of the law. Moreover, the trial court’s failure to charge specific intent and mistake of fact did not deny defendants a fair trial in this case. (People v Graziano, 151 AD2d 775; People v Fenton, 166 AD2d 748, 77 NY2d 905; People v Prise, 135 Misc 2d 363, 151 AD2d 787, 74 NY2d 850; People v Getch, 50 NY2d 456; People v Watts, 57 NY2d 299; People v Scarborough, 49 NY2d 364; People v Crimmins, 36 NY2d 230; People v Cadorette, 83 AD2d 908, 56 NY2d 1007; People v Troy, 119 AD2d 880; People v Glover, 107 AD2d 821, 66 NY2d 931.) III. The trial court did not err either in admitting evidence which bore on the victim’s compulsion by implied threat or in limiting the scope of cross-examination on this evidence. Moreover, because defendants failed to preserve for appellate review their claim that the trial court should have given limiting instructions regarding this threat evidence, this further claim is beyond this Court’s jurisdiction. (People v Alvino, 71 NY2d 233; People v Vails, 43 NY2d 364; People v Molineux, 168 NY 264; People v Ventimiglia, 52 NY2d 350; People v Santarelli, 49 NY2d 241; People v Allweiss, 48 NY2d 40; People v Crimmins, 36 NY2d 230; People v Bornholdt, 33 NY2d 75; People v Dawson, 50 NY2d 311; People v Wise, 46 NY2d 321.) IV. Many of defendant Williams’s claims of summation error are unpreserved for appellate review. Thus, this Court is without jurisdiction to review those claims. In any event, the prosecutor’s summation comments did not deny defendant Williams a fair trial. (People v Nuccie, 57 NY2d 818; People v Galloway, 54 NY2d 396; People v Medina, 53 NY2d 951; People v Thomas, 50 NY2d 467; People v Oglesby, 128 AD2d 556; People v Arce, 42 NY2d 179; People v Marks, 6 NY2d 67, 362 US 912; People v Ashwal, 39 NY2d 105; People v Roopchand, 107 AD2d 35, 65 NY2d 837; People v Robinson, 135 AD2d 586, 71 NY2d 902.)
    
      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Barbara D. Underwood and Tammy J. Smiley of counsel), pro se, and Robert T. Johnson for New York State District Attorneys Association, amici curiae in the first, second and third above-entitled actions.
    A rape victim’s prior consensual sexual conduct should not be admissible at a defendant’s trial unless the prior conduct is uniquely similar to defendant’s alleged conduct. (Loving v Virginia, 388 US 1; People v Oathout, 240 App Div 739; People v Mandel, 48 NY2d 952; People v Halbert, 175 AD2d 88, 80 NY2d 865; People v Gagnon, 150 AD2d 918, 75 NY2d 736; People v Crawford, 143 AD2d 141, 72 NY2d 1044; People v Reardon, 141 AD2d 869; People v Laundry, 122 AD2d 450; People v Carroll, 117 AD2d 815; People v Westfall, 95 AD2d 581.)
    
      Bermingham, Cook & Mahoney, P. C, Buffalo (Mark J. Mahoney of counsel), for New York State Association of Criminal Defense Lawyers, amicus curiae in the first, second and third above-entitled actions.
    I. The right to present a defense requires admission of all relevant evidence which is favorable to the accused. (United States v Leon, 468 US 897; People v Johnson, 62 AD2d 555; People v Mountain, 66 NY2d 197; Wallace v Hunter, 149 F2d 59; Gompers v United States, 233 US 604; United States v Reid, 12 How [53 US] 361; United States v Nixon, 418 US 683; People v Peterkin, 151 AD2d 407; Ferguson v Georgia, 365 US 570; Washington v Texas, 388 US 14.) II. There are limits on the exclusion of complainant’s sexual history evidence. (People v Gagnon, 75 NY2d 736; People v Swain, 171 AD2d 765; People v Castell, 171 AD2d 561; People v Labenski, 134 AD2d 907; People v Ruiz, 71 AD2d 569; People v Mandel, 48 NY2d 952, 446 US 949; People v Kellar, 174 AD2d 848; People v Clark, 118 AD2d 718; People v Carroll, 117 AD2d 815; People v Westfall, 95 AD2d 581.) III. Fundamental rights of the accused may not be "balanced” away by general policies and interests. (People v Goggins, 34 NY2d 163; Roviaro v United States, 353 US 53; Davis v Alaska, 415 US 308; Maryland v Craig, 497 US 836.) IV. CPL 60.42 is unconstitutional, and unconstitutional as applied here.
    
      Lynn Hecht Schafran, New York City, Danielle Ben-Jehuda and Deborah Ellis for NOW Legal Defense and Education Fund and others, amici curiae in the second above-entitled action.
    I. The underlying purposes of CPL 60.42 require a narrow interpretation of any exception to the "rape shield law”. II. Defendant’s arguments are not compelling in light of the underlying purposes of CPL 60.42. (People v Mandel, 61 AD2d 563, 48 NY2d 952, 446 US 949; People v Westfall, 95 AD2d 581; Ellison v Brady, 924 F2d 872; People v Taylor, 75 NY2d 277.) III. Studies of juror attitudes toward rape support the conclusion reached by the Legislature in enacting the "rape shield law” and the decision of the Trial Judge to exclude the victim’s past sexual history.
   OPINION OF THE COURT

Simons, J.

Defendants have been convicted of multiple counts of rape and sodomy in the first degree. The charges arose after a New Jersey woman alleged defendants forced her into a car outside a Manhattan dance club, took her to a Brooklyn apartment and there raped and sodomized her. At trial, defendants sought to introduce evidence purportedly showing that the woman had previously engaged in group sex. They contend that the trial court improperly applied the State’s "rape shield law” (CPL 60.42) to deny their application, thereby depriving them of their Federal constitutional rights to present evidence and confront the witnesses against them. They also assign error to the trial court’s refusal to instruct the jury expressly that acquittal was required if defendants held a mistaken belief that the complainant had consented to sexual relations. The Appellate Division affirmed the judgments and we now affirm its order in each case.

I.

The complainant, 17 years old, first encountered the three teenage defendants on a street in Manhattan shortly after midnight on August 17, 1989. She and defendant Williams testified at trial and gave dramatically different accounts of what happened thereafter.

Complainant testified that she had come to New York City with a group of friends to go to a dance club and that around midnight, after she began to feel sick, she decided to wait for her companions in the car. A short time later, defendants struck up a conversation with her as she ran an errand to a nearby store and then asked her to accompany them to another club. She refused, but defendants continued to walk alongside her until they passed near defendant Richardson’s car. There, defendants surrounded her and, according to her trial testimony, she felt she had no choice but to go with them. She testified that Williams told her, "If you listen, you won’t get hurt.” Later, in the car, Williams intimated that his two companions were armed.

With Richardson driving and Williams seated next to the complainant in the back seat, defendants took her on a ride through Manhattan and Brooklyn, ultimately arriving at Williams’s Brooklyn apartment in the basement of his family’s home. The complainant concedes that the conversation in the car was friendly — an attempt, she testified, to "get on their good side”. The complainant testified that during the drive she repeatedly asked to be let out, but defendants refused. Once inside Williams’s apartment, she attempted to flee but found the door locked. She was then forced to engage in acts of sexual intercourse and sodomy by Williams and the others. Afterwards, they all left together, and in the car Williams forced her to perform oral sex on him. She was finally allowed to leave the vehicle near a mass transit station, where she immediately reported the incident to a police officer.

Williams was the only defendant to take the stand. He testified that all the incidents of sexual contact were consensual. According to his testimony, the complainant voluntarily accompanied them to Brooklyn, was affectionate toward him in the car, was never held against her will and had several opportunities to leave the car. He stated that she freely consented to sex with him in a bedroom at the apartment and then agreed to have sex with each of his friends. Later, when defendants let her out of the car near the transit station, he believed she intended to catch a train back to Manhattan to meet her friends. There was testimony from other witnesses which was not conclusive of the ultimate facts but tended to support some of the details in Williams’s account.

The jury credited the testimony of the complainant and convicted defendants of multiple counts of rape in the first degree (Penal Law § 130.35) and sodomy in the first degree (Penal Law § 130.50).

II.

Defendants challenge the trial court’s application of the “rape shield law” (CPL 60.42) on both statutory and constitutional grounds. At trial, Fearon’s defense counsel asked the court to admit evidence showing that the complainant, who is white, had previously engaged in consensual group sex with black males. He asserted that the evidence would be relevant “with regard to her [complainant’s] motivation in terms of testifying” against defendants, who are black, and offered to submit the details of evidence to the court ex parte. After a colloquy with the defense and the prosecution, the court ruled the evidence was inadmissible without hearing it.

CPL 60.42 bars evidence of a complainant’s past sexual conduct unless one of five statutory exceptions applies. The first four allow evidence of a complainant’s prior sexual conduct in narrowly defined factual circumstances. The fifth, the only subdivision under consideration here, is a broader “interest of justice” provision vesting discretion in the trial court. Defendants’ principal argument on this appeal concerns not the substance of the court’s ruling but the procedure it followed prior to ruling that the evidence was not admissible under subdivision (5).

The subdivision allows evidence of prior sexual conduct to be admitted when such evidence

“is determined by the court after an offer of proof by the accused outside the hearing of the jury, or such hearing as the court may require, and a statement by the court of its findings of fact essential to its determination, to be relevant and admissible in the interests of justice” (CPL 60.42 [5]).

Defendants do not assert that a formal hearing must be held in every instance where the accused seeks to invoke the “interest of justice” clause, nor does the statute impose such a rigid requirement. Instead, defendants maintain that the procedure adopted here by the trial court denied them even the minimal statutory right to make “an offer of proof’. They allege further the proceedings were so limited that they violated due process and arbitrarily deprived them of their Federal constitutional rights to present evidence and cross-examine witnesses in their own defense. Neither argument is persuasive.

New York’s rape shield law, like similar statutes in 47 other States, was passed in response to concerns that testimony about the sexual past of the victims of sex crimes often serves solely to harass the victim and confuse the jurors (see, Mem of Assemblyman Fink, 1975 NY Legis Ann, at 47-48). The statutes put to rest the now-discredited rationale that a victim’s past "unchastity” is probative of present consent and recognized that such evidence is typically of little or no relevance and may seriously prejudice the prosecution of sex crimes (see, Ordover, Admissibility of Patterns of Similar Sexual Conduct: The Unlamented Death of Character for Chastity, 63 Cornell L Rev 90). At the same time, by providing exceptions to the general evidentiary prohibition of section 60.42, our Legislature acknowledged that there are instances where evidence of a complainant’s sexual history might be relevant and admissible.

The exceptions also recognize that any law circumscribing the ability of the accused to defend against criminal charges remains subject to limitation by constitutional guarantees of due process and the right to confront the prosecution’s witnesses (US Const 5th, 6th Amends; Pointer v Texas, 380 US 400; Washington v Texas, 388 US 14; see also, Tanford and Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U Pa L Rev 544). The Supreme Court, in affirming that a defendant’s "right to present his own witnesses to establish a defense * * * is a fundamental element of due process of law” (Washington v Texas, supra, at 19), has held in a variety of circumstances that certain State rules restricting evidence were unconstitutional either on their face or as applied. For example, in Washington v Texas (id.), a State law prohibiting a coparticipant in crime from testifying for the defense was declared unconstitutional; in Davis v Alaska (415 US 308), the Court found that the defendant’s rights were violated by a State law that prevented his attorney from impeaching a prosecution witness with the witness’s juvenile record (see also, Olden v Kentucky, 488 US 227; Alford v United States, 282 US 687); in Rock v Arkansas (483 US 44), a rule that per se barred a defendant’s hypnotically refreshed testimony was declared unconstitutional. Similarly, in Chambers v Mississippi (410 US 284, 302) the Supreme Court found that a trial court’s "mechanistic” application of the hearsay rule to keep out testimony helpful to the accused violated the Constitution.

These decisions notwithstanding, it is settled that an accused’s right to cross-examine witnesses and present a defense is not absolute (id., at 295). Nor can the Sixth Amendment be read to "confer the right to present testimony free from the legitimate demands of the adversarial system” (United States v Nobles, 422 US 225, 241; accord, Michigan v Lucas, 500 US 145, —, 111 S Ct 1743, 1747-1748). Evidentiary restrictions are to be voided only if they are "arbitrary or disproportionate to the purposes they are designed to serve” (Rock v Arkansas, supra, at 56; Michigan v Lucas, 500 US, at —, 111 S Ct, at 1747, supra). A restriction is most likely to be found arbitrary when it is a per se rule, as in Rock, or when it is applied by a court without due consideration of the individualized circumstances and interests present in the matter before it, as in Chambers. Insofar as rape shield laws are concerned, the Supreme Court has recognized that they express the States’ legitimate interest in giving rape victims "heightened protection against surprise, harassment, and unnecessary invasions of privacy” (see, Michigan v Lucas, 500 US, at —, 111 S Ct, at 1746, supra).

Considering defendants’ statutory claim first, CPL 60.42 (5) requires only that the trial court hear an "offer of proof’ and provide "a statement * * * of its findings of fact essential to its determination”. Though the statute by its terms requires an offer of proof only when a court decides to grant a defense motion and admit the evidence, it does not follow that the statute was intended solely for the benefit of victims. The section is designed to protect the rights and interests of defendants as well as the interests of victims. The requirement of a factual statement is properly viewed as ensuring both due consideration of defense motions and an adequate record for appeal while at the same time assuring that the victim’s interests are properly considered. Its procedural dictates therefore play a critical role whether an offer of proof is being denied or accepted.

Both procedural requirements of the statute were met by the trial court here. "Offer of proof’ is not a term of art but its generally accepted meaning, one also found in an unrelated section of the Criminal Procedure Law, is to summarize the substance or content of the evidence (see, CPL 290.10). Here, defense counsel was allowed to describe the proposed evidence and to state to the court why he believed it relevant —specifically, that evidence of prior group sex with blacks would be probative of the complainant’s motivation for testifying. In the People’s response to the request, an additional theory was suggested: a pattern of similar sexual behavior might be probative of consent. Defense counsel did not endorse the People’s theory but took the opportunity to explain his proffer further. After doing so, he asked the court to rule. The court rejected the offer of proof and gave an explanation for its ruling.

We are satisfied that the court met its obligation to hear the "offer of proof’. Defense counsel was twice given an opportunity to summarize the evidence and explain its relevance without restriction by the court. Indeed, after a brief recitation of the substance of the offer, counsel concluded his remarks and, on his own initiative, requested a ruling. The court’s statement of its findings, though brief and general, was also adequate. The court might better have commented on the specific proffer and explained why the "interest of justice” exception was inapplicable under the circumstances of the case, but its statement adequately put defendants on notice of its reasoning and created a record for appeal. Any deficiencies in the procedure did not rise to the level of reversible error.

Nor is reversal required on constitutional grounds. A viable claim of arbitrariness could be made out in several ways — for instance, if the court refused to hear the offer of proof or if the court declined to give a fuller hearing to the evidence once a colorable claim of relevance had been made. But the burden for making a threshold showing of relevance rested on the defense as the moving party (People v Westfall, 95 AD2d 581, 583; People v Mandel, 61 AD2d 563, revd on other grounds 48 NY2d 952, appeal dismissed 446 US 949; see, People v Hackett, 421 Mich 338, 349-350, 365 NW2d 120). There is nothing arbitrary about a trial court requiring a sensible proffer as part of a motion under CPL 60.42 and refusing to proceed to a more elaborate airing of the evidence in the absence of one. To require that the accused make a threshold showing of relevance when CPL 60.42 is implicated is a minimal " 'legitimate demand[ ] of the adversarial system’ ” (see, Michigan v Lucas, 500 US 145, —, 111 S Ct 1743, 1748, supra).

Defense counsel here proposed that the evidence of the victim’s prior group sex with black males would show her motivation for testifying against defendants. Though given a full opportunity to do so, counsel made no effort to explain how prior sexual conduct with other males would be probative of the complainant’s motive to testify — a connection neither apparent nor logical on its face. Nor did counsel suggest that the evidence might be relevant to the question of consent, even after the prosecutor expressly raised that as a possible theory during the colloquy. In short, counsel gave no explanation of why the evidence was probative, and the Constitution does not compel a court to proceed to a fuller consideration of the evidence until the proponent demonstrates some basis for its admission. The constitutional standard is one of arbitrariness. Here, the court acted reasonably.

On this appeal defendants offer another theory of relevance: that the prohibited evidence was needed to counter a possible inference by the jury that no woman would voluntarily have sexual relations with three men she had met just hours before on the street. Though that theory was not expressly raised during the colloquy on the offer of proof or at any other time during trial, defendants point out that the prosecutor asked the jurors during summation to consider whether defendants’ account of the night’s events was "a little peculiar”. Defendants claim that at that point the court should have reconsidered its earlier ruling.

They rely on People v Mandel (61 AD2d 563, 568, revd on other grounds 48 NY2d 952, supra). In Mandel the Second Department held that a trial court, having initially barred evidence of prior sexual conduct should have reversed itself once the need for admission was apparent during cross-examination. The circumstances at the trial here were substantially different. Defendants do not allege, let alone demonstrate, that their alternate theory of relevance became apparent during either their case or the People’s. They cite only a single remark from the People’s summation, a remark which passed without objection or request for relief by them. In Mandel, the excluded evidence was directly linked to a specific and unique fact expressly raised and relied upon by the defense. Here the new theory of admissibility remains unclear, even with the advantage of hindsight unavailable to the Trial Judge. Certainly the trial court did not act arbitrarily when, in the absence of an objection, it failed to discern a nascent due process or Sixth Amendment violation in a rhetorical question contained in the People’s summation. Nor can Mandel be read as dispensing with established rules of preservation. While the trial court may have a duty in certain circumstances to reverse a CPL 60.42 determination, this was not such an instance.

III.

As an alternate basis for reversal, defendants contend the trial court erred in refusing to instruct the jury specifically on the mistake of fact defense and on intent as an element of first degree rape and sodomy. They assert that the jury could reasonably have found from the evidence adduced at trial that although the complainant had not consented to sexual relations, defendants mistakenly believed that she had. Under those circumstances, they say, their mistaken belief negated the intent necessary for a finding of guilt on the various counts.

The Penal Law provides that a defendant is guilty of rape, first degree, or sodomy, first degree, when he or she engages in sexual intercourse or deviate sexual intercourse by forcible compulsion (Penal Law §§ 130.35, 130.50). The People must also establish the victim’s lack of consent (Penal Law § 130.05 [1]), but lack of consent results from forcible compulsion (Penal Law § 130.05 [2] [a]). Though the statutes are silent on the subject, intent is implicitly an element of these crimes (Penal Law § 15.15 [2]). The intent required is the intent to perform the prohibited act — i.e., the intent to forcibly compel another to engage in intercourse or sodomy.

The question is whether the court’s charge, when viewed in its entirety, adequately conveyed to the jury that the defendants acted with the necessary culpable mens rea. The court’s instructions on forcible compulsion were as follows:

"the third and final element [the People must prove] is that the lack of [complainant’s] consent resulted from the use of forcible compulsion * * * "Forcible compulsion means to compel by either use of physical force, or a threat, express or implied, which places a person in fear of immediate death or physical injury to herself.”

Manifestly, it is unnecessary to forcibly compel another to engage in sexual acts unless that person is an unwilling participant. Thus, the jury, by finding that defendants used forcible compulsion to coerce the victim to engage in sodomy and intercourse, necessarily found that defendants believed the victim did not consent to the sexual activity. The instructions given covered the defense theory and the court did not commit reversible error in declining to give additional instructions on mens rea or mistake of fact.

IV.

We have reviewed defendants’ remaining contentions and find them without merit.

Accordingly, in each case, the order of the Appellate Division should be affirmed.

Bellacosa, J.

(dissenting). In each case, I respectfully dissent and vote to reverse and order a new trial.

The sole basis upon which I would grant a new trial is that the trial court erred by refusing to instruct the jury on the essential culpable mental state element of criminal intent. The fair inferences from this record favor the People’s position that the trial court accorded at least minimal safeguards with respect to two other important and close legal issues, i.e., satisfaction of the rape shield law requirements (CPL 60.42) and refusal to instruct on mistake of fact. On that basis and in those respects, I agree with the Court’s reasoning and analysis.

This Court is unanimous that general intent is the culpable mental state of the crimes for which the three defendants were charged and convicted (see, Penal Law § 15.05; Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law art 15, at 32-34; Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law art 130, at 568-570). That being so, we appear to be also unanimous that the trial court’s articulation and understanding of this principle was erroneous. In the preinstruction conference and colloquy, the trial court stated:

"There is no element of intent. * * * [T]he elements of rape and sodomy do not require any intent to do anything. It’s a crime of action as opposed to a crime of intent. It’s not a mens rea crime. * * * You don’t have to get into the intent of anybody here. Intent is not an element of the crime of rape. * * * [Intent is] not an element of the crime of forcible compulsion. * * * [I]t’s a crime of conduct, not a mens rea, state of mind” (emphasis added).

Based on that erroneous statement of the concededly applicable principle of law on the pertinent culpable mental state, which the majority characterizes merely as "misstatements to counsel,” the trial court rejected the defendants’ request to instruct on intent. Thus, my legitimate concern relates not to elaboration of what the trial court stated to the jury, but to what the trial court failed to tell the jury and its reasons for that ruling (majority opn, at 317, n 4).

This Court summarily exonerates the trial court from its erroneous refusal to instruct the jury, as requested, on the element of intent. This disposition both ignores and contradicts elementary instructional theorems. Jury instructions must include "the material legal principles applicable to the particular case” (CPL 300.10 [2]). Thus, every element of a charged crime must be included in the roadmap given to the jury for its deliberations (see, People v Flynn, 79 NY2d 879, 881; People v Lewis, 64 NY2d 1031, 1032; LaFave and Israel, Criminal Procedure, at 888 [1985]).

The prejudicial impact on the defendants from this error in relation to the other intensely disputed legal issues cannot be underestimated. It is not good enough in a case such as this, and on an issue so elemental, to fall back on the instructions-as-a-whole legitimization, as the Court does here. Moreover, a serious analytical and dispositional flaw is evident in the assumption that despite the absence of any instructional guidance, the jury somehow on its own bridges the missing mental step to arrive at the element of intent and know that it was an indispensable ingredient in order to return a verdict of guilty.

Part of the very reason for jury instructions is to prevent personal leaps of logic or speculation on key legal points (see, Lanzano v City of New York, 71 NY2d 208, 211-212, rearg denied 71 NY2d 890 ["Juries should not be allowed to (base their verdicts) on misconceptions of the law when simple and straightforward instructions * * * are readily available to help them in the truth-finding process”]). I respectfully submit that the Court’s approval of this elliptical methodology represents an unwarranted departure from sound and long-standing jury instructional theory and practices. The fairer and better practice is to lead the jury to the water by complete jury instructions, not allow it to speculate on and search for interstices as it strives to fulfill its unique obligation to apply all relevant legal principles to factual evidence before finding defendants guilty beyond a reasonable doubt on all elements of crimes charged. Courts should not countenance or promulgate rules regarding jury instruction that are based on the mere wish or hope that the right ingredients may drop into the pot during the jury’s solitary deliberations. Jury instructions are freighted with commands and imperatives to assure reasonably and scrupulously that the jury will know all they need to know about the law from the sole law source, the trial court. That did not happen in this case and the Court should not excuse this critical lapse.

The Court offers no authoritative sources — and I am aware of none — for its dispensation from an instruction on the essential culpable mental state element on the novel theory that the jury, in effect, would have applied natural reasoning to stumble into the right legal result. One is left to ponder what other instructions may be bypassed in the future on this rationale.

The Court’s analysis, I respectfully submit, also loses its way among crucial words and concepts which have historically governed the imposition of criminal responsibility. To compel by "forcible coercion” is essentially a facet of the traditional actus reus — the criminal act; intent is the quintessential mens rea — the culpable mental state (see, LaFave and Scott, Criminal Law, at 177-178, 196 [1972] [defining and distinguishing actus reus and mens rea]; Penal Law § 15.05). Blending and blurring the two concepts, and allowing one to be logically subsumed within or inferred from the other for instructional purposes, should not be justified as a sound legal proposition and proper method of analysis. In particular, the Penal Law provides a very precise definition of "forcible compulsion,” which does not contemplate or embrace the analysis and circumstances here (Penal Law § 130.00 [8]). Moreover, the jury’s total ignorance of its obligations, had it encountered reasonable doubt concerns on the intent element during its deliberations, is extremely disquieting. I cannot be confident that the jury understood or appreciated the particular legal consequences flowing from the absence of legal intent, a classic term of art and an indispensable element of the crime charged (contrast, People v Yanik, 43 NY2d 97, 100-101). Frankly, if the jury thought of the matter at all in this case, which is at least in some doubt, it would very likely have experienced confusion or uncertainty concerning the legal concept and how to apply the crucial principle in relation to the other intersecting, though legally discrete, nuances of this case.

Notably, the trial court gave an acting-in-concert instruction, including specific reference to the intent, required on such a theory. That highlights the prejudicial impact of the failure to instruct on the general culpable intent required for the direct commission of the crimes at issue. If reviewing courts are to assume that juries faithfully follow explicit instructions, then they should likewise accept the likelihood of a jury’s literal docility when faced with a total absence of instruction on the mental core of the direct commission of the crimes, a concededly indispensable element. A reasonably intelligent jury would more naturally conclude it was forbidden from considering intent in the constellation of issues of this case, reasoning that after being so explicitly instructed on the acting-in-concert theory, silence meant intent was not applicable on the direct commission aspect.

In sum, both precedentially and for the adverse implications to appellants, I do not believe the Court should absolve or tolerate the acknowledged gap in the essential jury instructions on a legal issue that emerged as a significant, practical nucleus of the case. This case, based on a reading of the whole record, is threaded with an elusive yet worrisome potential risk of miscarriages of justice. That risk is heightened beyond acceptable limits of appellate review by rationalizing away a reversible instructional error.

Chief Judge Kaye and Judges Titone, Hancock, Jr., and. Smith concur with Judge Simons; Judge Bellacosa dissents and votes to reverse in a separate opinion.

In each case: Order affirmed. 
      
      . (See generally, Tuerkheimer, A Reassessment and Redefinition of Rape Shield Laws, 50 Ohio St LJ 1245; State v Budis, 243 NJ Super 498, 506, n 1, 580 A2d 283, 287-288, n 1.)
     
      
      . Because defendants challenge only the procedural aspects of the statute and the statute’s application to their case, the other branch of the constitutional standard — whether the evidentiary restriction is disproportionate to its purposes — is not relevant here (cf., Davis v Alaska, 415 US 308, 320).
     
      
      . The Penal Law recognizes three situations in which a person may be relieved of criminal liability when acting under a mistaken belief of fact: (1) when the factual mistake negates a culpable mental state required as part of the offense, (2) when the statutes defining the offense expressly allow the defense or (3) when the mistake supports a defense of justification (Penal Law § 15.20 [1] [a], [b], [c]). The statute authorizing a mistake of fact defense to sexual offenses does not apply under the facts of this case (see, Penal Law § 130.10) nor does the defense of justification. Defendants rely on section 15.20 (1) (a), a factual mistake negates a culpable mental state, contending that their mistaken belief that complainant consented to intercourse negated the requirement of intent implicit in the element of forcible compulsion.
     
      
      . As a court of law examining the instructions, we must evaluate what the court stated to the jury during the charge, not its misstatements to counsel during colloquy (see, dissenting opn, at 318).
     