Weiss, P. J., Mikoll, Crew III and Harvey, JJ., concur.

Yesawich Jr., J.

Defendant contends that his conviction was against the weight of the evidence, that the prosecutor's summation deprived him of a fair trial and that the sentence imposed, an indeterminate prison term of 12½ to 25 years, was unduly harsh and excessive.

According to the victim, on the morning of October 24, 1990, as she was returning from grocery shopping, she was approached by defendant, who called her name and asked if she was looking for furniture. Being interested in purchasing [880] furniture at the time, and although apprehensive about doing so, she accompanied him to an apartment to look at the furniture. While there, as she was passing through the bedroom on her way to the kitchen, defendant grabbed her from behind, pulled her to the mattress, held her in place while he removed her pantyhose and panties and had intercourse with her, ejaculating in her vagina. The victim, who was eight months pregnant at the time, protested but admits not having screamed nor struggled violently, allegedly because defendant was completely or partially on her stomach and she feared her unborn child would be injured if she did so.

After the incident, the victim was allowed to get dressed and leave. She ran down the street, eventually arriving at her aunt's house, and told her cousin that she had been raped; the cousin then called the police, and the victim was taken to the emergency room of the local hospital where she was examined. No signs of physical injury were found and only nonmotile sperm were found in her vagina.

At trial, the victim testified to all of the above, and additional testimony was furnished by the taxicab driver who had driven the victim and defendant to the apartment, the cousin and emergency room personnel. Two of defendant's acquaintances also testified as to their own encounters with him and how he came to be staying at the apartment where the alleged assault took place. Defendant did not testify, nor were any witnesses presented to support his trial counsel's argument that the alleged sexual intercourse had been consensual.

The evidence, viewed in the light most favorable to the People, amply supports the conclusion that there was forcible compulsion and no consent. Neither physical injury, nor screaming or crying out, is a necessary component of first degree rape (People v Gonzalez, 136 AD2d 735, lv denied 71 N.Y.2d 896). Indeed, a threat, either express or implied, which places a person in fear of physical injury is enough to constitute forcible compulsion (Penal Law § 130.00 [8]). When the victim's testimony is credited, it fully justifies a finding that defendant pushed or pulled her down, restrained her arms, removed her clothing and laid on top of her preventing her escape. Given the victim's size and physical condition, this use of force is sufficient to warrant a finding of forcible compulsion (see, People v Gregory ZZ., 134 AD2d 814, 816-817, lv denied 71 N.Y.2d 905). It is also readily inferable from the victim's testimony that she believed that defendant's weight and movement were such that further struggling would cause [881] harm to her unborn child, or that defendant would harm her if she resisted.

Whether the victim consented simply presented a credibility issue that was resolved by the jury in her favor (see, People v Walton, 171 AD2d 954, 955). Furthermore, the fact that she was crying and visibly distraught after the incident, as attested to by the victim and corroborated by the testimony of her cousin and the emergency room physician and nurses, lends additional force to her claim that she did not consent (see, People v Gregory ZZ., supra, at 816). The foregoing, coupled with the fact that we are unpersuaded by defendant's contention that the events as described by the victim were physically impossible, leads us to conclude that the verdict is supported by the weight of the evidence (see, People v Bleakley, 69 N.Y.2d 490, 495).

Nor are we persuaded that certain challenged statements made by the prosecutor during the course of his summation were inappropriate and deprived defendant of a fair trial. As to those comments, which the prosecutor acknowledged and County Court found to be "borderline", namely the prosecutor's urging the jurors not to fall into the "trap" apparently of believing that because "defendant pleaded not guilty, therefore, there must be something more here than meets the eye" and the prosecutor's characterization of defense counsel's comments in summation as "insulting * * * to probably thousands of women in this country who have been raped", the court gave the jury adequate curative instructions which neutralized their adverse effect. The other statements assailed by defendant represented, in our view, nothing more than a fair comment on the evidence or were unobjected to and hence unpreserved for review.

Regarding the sentence imposed, it is defendant's contention that because he was offered a sentence of 6 to 12 years in exchange for a guilty plea, but eventually given a 12½ to 25-year sentence after trial, he was unfairly punished for exercising his right to a trial. A review of the record discloses no vindictiveness on the part of County Court in arriving at the sentence (cf., People v Cox, 122 AD2d 487, 489). Furthermore, in view of defendant's extensive criminal record, and the fact that he is a second violent felony offender, the sentence imposed was not inappropriate.

Ordered that the judgment is affirmed.

[942 N.Y.S.2d 458]

Cyrus R. Vance, Jr., District Attorney, New York City (Vincent W. Rivellese and Hilary Hassler of counsel), for appellant.

Dratel & Mysliwiec, P.C., New York City (Alice L. Fontier of counsel), for respondent.

MEMORANDUM.

[965 N.E.2d 960] The order of the Appellate Division should be affirmed.

During the morning rush hour on March 22, 2002, a teenage girl on her way to school got on a packed subway train in Manhattan. She stood just inside the train's door as a tall and very heavy man pushed himself in so [that] he was behind her. Once the doors closed and the train started to move, the girl felt some weird movements on her lower back, which she attributed to the swaying of the train and the press of passengers. When she turned in the man's direction, though, the touching sensation stopped; it resumed when she turned back around. She tried to move more to [her] right to avoid this man, but she was hemmed in by the crush of commuters. The man left the train one station after he got on. When the girl eventually got off the train, she noticed semen on her jeans and coat. Upon her arrival at school, she reported the incident to school officials, who called the police.

Although the police developed a DNA profile from the semen on the girl's clothing right away, a suspect was not immediately [18 N.Y.3d 931] identified. Then in 2007, defendant Jason Mack's DNA was added to the State's DNA data bank. An employee of the Office of the Chief Medical Examiner of the City of New York matched the DNA recovered from the girl's clothing to defendant's genetic profile. Defendant was subsequently charged by the grand jury with one count of first-degree sexual abuse (a class D felony) for the acts committed against the girl, as well as a count of third-degree sexual abuse (a class B misdemeanor) for an incident in 2006 involving another victim.

Defendant asked Supreme Court to inspect the grand jury minutes and to dismiss or reduce the first-degree count, arguing that the evidence did not establish the use of force. As relevant here, a person is guilty of first-degree sexual abuse when he or she subjects another person to sexual contact ... [b]y forcible compulsion (Penal Law 130.65[1] ); and forcible compulsion means to compel by ... use of physical force (Penal Law 130.00[8][a] ). By contrast, [a] person is guilty of [third-degree sexual abuse] when he or she subjects another person to sexual contact without the latter's consent, with an exception not at issue in this case (Penal Law 130.55).

By decision and order dated September 22, 2008, Supreme Court concluded that the mere close presence of many other passengers in the train [was] not sufficient to establish the requisite use of forcible compulsion. The judge therefore reduced the count of first-degree sexual abuse in the indictment to third-degree sexual abuse. After the People re-presented the case, defendant was again indicted for first-degree sexual abuse for the encounter on March 22, 2002. He once more asked Supreme Court to inspect the grand jury minutes and to dismiss or reduce the new [965 N.E.2d 961]

[942 N.Y.S.2d 459]

charge of first-degree sexual abuse on the ground of insufficient evidence of forcible compulsion. By decision and order dated January 29, 2009, the judge found that the evidence showed that defendant sexually touched the complainant[,] but failed to establish the requisite use of forcible compulsion. Accordingly, Supreme Court dismissed the one-count indictment, observing that the People could still prosecute defendant for this incident under the reduced charge in the original indictment.

Upon the People's appeal, the Appellate Division affirmed, with two Justices dissenting (76 A.D.3d 877, 908 N.Y.S.2d 181 [1st Dept.2010] ). The court remarked that [w]hile the conduct described in the grand jury presentation was reprehensible, the evidence established only the use of stealth to commit the crime, not [18 N.Y.3d 932] the use of physical force ( id. at 879, 908 N.Y.S.2d 181). The dissenters considered the proof sufficient to make out a prima facie case, analogizing the facts to robberies where defendants and their accomplices act together to create a human wall to intimidate or block a victim. A Justice of the Appellate Division granted the People leave to appeal, and we now affirm.

Here, there was no coordinated action by defendant and other passengers to hedge in the victim. Rather, the crowded conditions in the subway car merely masked and facilitated the unwanted sexual contact alleged. The sexual contact itself is the only physical force that defendant may be said to have deployed against his victim. This is not enough to establish that the sexual contact was compel[led] by ... use of physical force.

Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.

Order affirmed in a memorandum.

Sol Greenberg, District Attorney (Cheryl F. Coleman of counsel), for appellant.

Lewis B. Oliver, Jr., and Harriet B. Oliver for respondent.

Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.

[412] Chief Judge WACHTLER.

Defendant was convicted, after a trial by jury, of two counts of first degree sodomy (Penal Law § 130.50 [1]). The Appellate Division reversed the judgment of conviction and remitted the matter for a new trial on the third degree sodomy counts not reached by the jury, on the ground that the People had failed to adduce sufficient evidence of forcible compulsion. Specifically, the Appellate Division held that, because the encounter took place while defendant and the victim were separated by [413] jail bars, the defendant's threats to injure the victim or have others do so could not be carried out "immediately" and therefore did not constitute forcible compulsion as that term is defined in the Penal Law (§ 130.00 former [8]). We now reverse and remit to the Appellate Division for the exercise of its factual review powers and for the determination of other issues not reached on the appeal to that court.

I.

To determine whether a jury verdict is supported by legally sufficient evidence, a reviewing court must consider "whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial * * * and as a matter of law satisfy the proof and burden requirements for every element of the crime charged" (People v Bleakley, 69 N.Y.2d 490, 495 [citing Cohen v Hallmark Cards, 45 N.Y.2d 493, 499]). Thus, because the jury returned a guilty verdict, the evidence must be viewed by us in the light most favorable to the People. From that perspective, the trial evidence established the following.

The events in question took place on August 6, 1981, while defendant and the victim were both inmates at the Albany County jail. The victim, a 16-year-old male, had been in the jail slightly less than three weeks, awaiting disposition of charges that he had sold hashish. He occupied a cell in the first east tier of the jail, a portion of the jail reserved for unsentenced juveniles. The juvenile tier consists of 25 cells which open to a common walkway known as the bullpen. The cells are routinely unlocked during most of the day, so that the bullpen area is accessible to all inmates on the tier. Beyond the bullpen, and separated from it by a set of bars, is a parallel walkway referred to in the testimony as the catwalk. The bullpen and the catwalk each end in a locked gate, tended by a correction officer, which separate the tier from the rest of the jail. Jail policy prohibits adult inmates from entering the juvenile tier.

The defendant, a 35-year-old male, was housed in one of the adult tiers. He had spoken to the victim on three occasions prior to the August 6 incident, twice in the mess hall, where they engaged in conversation about their backgrounds, and once in or near the weight-lifting room, where defendant commented on the victim's slight stature and demonstrated [414] his own strength by lifting the victim over his head. The victim testified that he was about five feet, six inches tall and weighed approximately 120 pounds. He estimated that defendant was six-feet tall and weighed about 180 pounds.

Sometime between 11:00 A.M. and noon on August 6, defendant approached the correction officer on duty at the gate to the juvenile tier and asked to be permitted into the tier to speak to an inmate. Despite the policy prohibiting such access, defendant was admitted to the catwalk area. The guard then returned to his desk, from which point he was unable to view the tier.

Defendant called to the victim through the bars separating the catwalk from the rest of the tier. The victim exited his cell and approached the bars. Defendant then stated that he wanted the victim to perform an act of oral sex. When the victim refused, defendant issued the threats which are the focus of this appeal. According to the victim:

"[H]e started to threaten me and say he could have people kick my ass if I didn't do it.

* * *

"He told me that anything could happen to me if I walked off the tier. It could happen anywhere, he said. I could get beat up anywhere, it could even be somebody on the tier if he wanted to.

* * *

"He said that he could put the word out on me if he wanted to and he could have anybody kick my ass.

* * *

"[H]e said it was a matter of trusting him and if I did it with him I wouldn't have to worry about it. I wouldn't have to be worried about being bothered again and if I didn't do it, that, you know, the same thing would happen.

* * *

"He would make sure I would have a rough time while I was there.

* * *

"He just meant that, you know, he could have somebody kick my ass if he wanted to."

[415] Another inmate on the tier testified that he viewed the incident and heard defendant state, "[I]f you don't give me no piece of ass I'll kick your ass."

Following these threats, the victim complied with defendant's requests that he submit to various acts of sodomy. Defendant renewed his threats between episodes. During the entire incident the two remained on opposite sides of the bars of the catwalk.

That afternoon the victim asked to be placed in protective custody, and the following day he reported the incident to officials. Defendant was charged in an indictment with two counts of first degree sodomy and two counts of third degree sodomy. Following a trial, a jury found defendant guilty of the two first degree counts but did not reach the third degree counts, pursuant to the court's instructions.

II.

First degree sodomy, as charged in the indictment against defendant, occurs when the actor "engages in deviate sexual intercourse with another person * * * [b]y forcible compulsion" (Penal Law § 130.50 [1]). At the time of the alleged crime, forcible compulsion was defined as follows: "physical force which is capable of overcoming earnest resistance; or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person, or in fear that he or another person will immediately be kidnapped" (Penal Law § 130.00 former [8]).^[1]

The Appellate Division concluded that defendant's threats did not rise to the level of forcible compulsion because they were not "capable of immediately being carried out" (132 AD2d 885, 886). We note at the outset that, although it may not have been so intended, to the extent that this standard would relieve a defendant of criminal liability simply because he is, in fact, incapable of making good on his threats, it must be rejected.

As we stated in a similar situation, the inquiry required in determining whether threats amount to forcible compulsion is not what the defendant would or could have done, "but rather what the victim, observing [the defendant's] conduct, feared [416] [he] would or might do if [the victim] did not comply with [his] demands" (People v Coleman, 42 N.Y.2d 500, 505). The proper focus is on the state of mind produced in the victim by the defendant's conduct, because the sine qua non for criminal liability for sex offenses under our Penal Law is lack of consent, resulting from either forcible compulsion or incapacity to consent (see, Penal Law § 130.05).

The impossibility or improbability of the defendant's assertions may be relevant considerations for the fact finder in determining whether the victim was actually placed in fear or whether the defendant intended such an effect. But the fact that a court may, in hindsight, determine that the threats were incapable of being executed cannot transform the victim's submission to them into consent. As the drafters of the Model Penal Code noted, "It seems clear * * * that one who takes advantage of [a victim's] unreasonable fears of violence should not escape punishment any more than a swindler who cheats gullible people by false statements which they should have found incredible. Neither the blameworthiness of the actor nor the gravity of the insult to the victim is ameliorated by a finding that the threat was implausible or that the actor lacked capacity to carry it out" (ALI, Model Penal Code and Commentaries § 213.1, at 310). For that reason, the Model Penal Code rejected the requirement, common in many jurisdictions at the time, that the victim's reaction to threats be reasonable or that the actor have the present capacity to inflict the harm feared (id.). Notably, New York's contemporaneous revision of its Penal Law (L 1965, ch 1030), which was heavily influenced by the Model Penal Code (see, People v Goetz, 68 N.Y.2d 96, 109), resulted in a new definition of forcible compulsion which eliminated the prior requirement that the victim have "reasonable cause to believe" that the threatened harm would be inflicted (see, 1881 Penal Code § 278 [4] [rape]; 1909 Penal Law § 690 [3], as amended by L 1950, ch 525, § 15 [sodomy]; § 2010 [3] [rape]).

Thus, the proper question is not whether the defendant was capable of carrying out his threats, but rather whether the jury could reasonably infer that those threats placed the victim in fear of "immediate death or serious physical injury" (Penal Law § 130.00 former [8]). We conclude that the trial evidence was sufficient to justify such an inference.

Defendant contends that the evidence failed to establish that there was a threat of immediate harm. According to [417] defendant, the evidence established, at most, that the threats were to have the victim assaulted by someone else at some indefinite time in the future. This characterization of the evidence, however, ignores several important aspects of the testimony.

Most significantly, defendant fails to take into account his threat that the victim "could get beat up anywhere, it could even be somebody on the tier". With the cell doors unlocked, as they were throughout the day, the inmates within the juvenile tier had immediate access to the victim. The evidence also established that at least two of those inmates, including one considered by the victim to be a friend, viewed the incident without offering the victim any assistance. The victim was only 16 years old and a novice to the world of incarceration. The defendant was more than twice his age, powerfully built, and had made it clear to the victim that he held a position of power in the oppressive and unfamiliar environment the victim had recently entered. Indeed, defendant's mere presence in the restricted juvenile tier was evidence of the influence at his disposal. That the defendant was not specific about when the threats might be carried out is of little consequence. The breadth of his threats encompassed the possibility that the harm could be delivered by anyone, including those with immediate access to the victim, and at anytime, including the present. The evidence, therefore, viewed as a whole, provided a sufficient basis for the jury's conclusion that defendant's threats placed the victim in fear of immediate death or serious physical injury.^[2]

III.

Thus, the Appellate Division erred in concluding that the evidence of forcible compulsion was legally insufficient. Because of that error, the court did not exercise its factual review powers and the case must be remitted for further proceedings. We have examined defendant's remaining legal contentions in support of an affirmance and find them to be either unpreserved or without merit.

[418] Accordingly, the order of the Appellate Division should be reversed and the case remitted for further proceedings in accordance with this opinion.

Order reversed, etc.

[1] The definition of forcible compulsion has since been amended to eliminate the requirements of "earnest resistance" (L 1982, ch 560) and fear that a threatened physical injury be "serious" (L 1983, ch 449).

[2] In light of this conclusion, we need not decide whether forcible compulsion can result from threats that put the victim in fear of retaliation — i.e., threats that the victim understands can only be accomplished in the future. The parties to this appeal appear to agree that the term "immediate" in Penal Law § 130.00 former (8) ("fear of immediate death or serious physical injury") requires that the victim fear harm in the very near future.

C. Vernon Mason, New York City, and Valerie A. Hawkins for appellant in the first above-entitled action.

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.

Richard E. Haftel, New York City, for appellant in the third above-entitled action.

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.

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.

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.

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.

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.

[309] 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 [310] 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.

[311] 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 [312] 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,^[1] 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 [313] 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.^[2] 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 [314] 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 N.Y.2d 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 [315] 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 N.Y.2d 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 [316] 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.^[3] 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 [317] 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.^[4] 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 [318] 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 N.Y.2d 879, 881; People v Lewis, 64 N.Y.2d 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, [319] 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 N.Y.2d 208, 211-212, rearg denied 71 N.Y.2d 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 [320] 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 N.Y.2d 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 [321] 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.

In each case: Order affirmed.

[1] (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.)

[2] 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).

[3] 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.

[4] 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).