In People v. Newton (8 NY3d 460, 867 NE2d 397, 835 NYS2d 546 2007), the Court of Appeals held that a defendant charged with sodomy in the third degree (now called "criminal sexual act" in the third degree) was not entitled to an intoxication charge because the crime required, inter alia, only that a "reasonable person in the actor's situation" would have understood that a victim did not consent to sexual relations. (See Penal Law 130.40 3; 130.05 2 d.) The Court held that "because a defendant's subjective mental state is not an element of the crime of third-degree sodomy, under the Penal Law sections listed here evidence of intoxication at the time of the sexual act is irrelevant." (8 NY3d at 464.) That reasoning is obviously inapplicable where a defendant's subjective mental state is an element of a crime.