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D was indicted for the crimes of sodomy in the first degree, sexual abuse in the first degree, and sodomy in the third degree. D was accused of engaging in oral sex with a 19-year-old male by forcible compulsion and without consent. D contended that the alleged victim did not resist or otherwise communicate a lack of consent and that he perceived the sexual act to be consensual. It is undisputed that D had been consuming beer steadily in the hours before this incident. At trial, D asked the court to instruct the jury on intoxication with respect to both sodomy counts. The court charged the jury on intoxication with respect to first-degree sodomy only. That crime called for the factfinder to conclude beyond a reasonable doubt that D intended to engage in forcible compulsion which intent could be negated by the fact that D was intoxicated at the time. As to third-degree sodomy, the court instructed the jury that 'intoxication is not a defense under any circumstances' because there was no element of intent or other subjective mental state required for this crime. Sodomy in the third degree involves an allegation that a reasonable person in D’s situation would have understood the alleged victim's words and acts as an expression of a lack of consent. The jury acquitted D of sodomy in the first-degree and convicted him of sodomy in the third degree. The Appellate Division affirmed. D appealed.

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