I agree with the majority that defendant’s challenge to the sufficiency of the evidence, to the extent it is based on the holding in People v Feingold (7 NY3d 288 [2006]) that depraved indifference to human life is a culpable mental state, is not preserved for review. At defendant’s trial, the clear understanding of the court and the parties, consistent with the holding in People v Register (60 NY2d 270 [1983], cert denied 466 US 953 [1984]), was that the only mental state required for the depraved indifference murder and assault counts was recklessness. Defendant made no argument or protest to the contrary. For this reason, defendant is wrong in contending that his current claim that depraved indifference is a culpable mental state is preserved for review merely because the court, in the course of ruling on a different issue that was in dispute, correctly stated the contrary holding in Register (see People v Colon, 46 AD3d 260, 263 [2007] [ruling by trial court on issue of law did not preserve issue for review when court’s ruling was not made in response to a protest by a party]). I also agree with the majority that we should not review this unpre-served claim in the interest of justice. To the extent defendant is claiming on this appeal that the evidence was legally insufficient even when evaluated under the Register standard, I agree with the majority that the evidence was legally sufficient.
Although there was no jury to be instructed, the clear understanding of the parties that recklessness was the only mental state required for these crimes renders this case indistinguishable from a jury trial in which the jury is charged, without objection, under an incorrect or subsequently invalidated standard (see People v Danielson, 9 NY3d 342, 349 [2007]; People v Johnson, 43 AD3d 288, 291-292 [2007], revd on other grounds 10 NY3d 875 [2008]). Because for this reason we must weigh the evidence in light of the elements of the depraved indifference crimes as they were defined in Register, I agree with the majority that the verdict convicting defendant of those crimes is not against the weight of the evidence.
*195After making clear that it is not reviewing in the interest of justice defendant’s unpreserved challenge under Feingold, the majority alternatively holds as follows: “Even subjecting [defendant’s] conviction to analysis under Feingold, ... we conclude that the evidence nevertheless supports a finding that his conduct evinced a depraved indifference to human life.” We need not and should not decide, however, whether the evidence is sufficient under Feingold. By not deciding that issue, we would avoid the need to address and decide the question of law that is at the core of defendant’s challenge to the sufficiency of the evidence under Feingold: whether voluntary intoxication remains irrelevant as a defense in a prosecution for depraved indifference murder.
Under the last sentence of Penal Law § 15.05 (3), a person who is unaware solely by reason of voluntary intoxication that his conduct creates a particular risk nonetheless acts recklessly with respect to that risk. In Register, this sentence played a decisive role in the Court’s conclusion that the requirement of conduct evincing a depraved indifference to human life “does not create a new and different mens rea . . . which can be negatived by evidence of intoxication” (60 NY2d at 279; see also id. at 275-276).
However, because voluntary intoxication does not negate the mens rea of recklessness, it hardly follows that it does not or cannot negate the distinct mens rea of depraved indifference, “an additional requirement of the crime—beyond mere recklessness and risk—which in turn comprises both depravity and indifference” (People v Suarez, 6 NY3d 202, 214 [2005]; see Feingold, 7 NY3d at 294). If voluntary intoxication remains irrelevant under Feingold as a defense to a depraved indifference prosecution, it must be that an individual can be depravedly indifferent to a risk without being aware of it. How that could be is far from obvious. Notably, as defendant stresses, a panel of the Third Department has concluded that voluntary intoxication can negate the mens rea of depraved indifference (People v Coon, 34 AD3d 869, 870 [2006] [“as defendant was too intoxicated to form a specific criminal intent, he also would be incapable of possessing the culpable mental state necessary to prove depraved indifference”]).
As I read the majority’s opinion, it does not decide this question sub silentio. After all, although it correctly notes the specific holding of Register on the irrelevance of voluntary intoxication in a prosecution for depraved indifference murder, it does not *196mention, let alone discuss, the issue of whether that holding remains good law after Feingold. Nor does the majority mention that defendant argues at length that under Feingold the mens rea of depraved indifference can be negated by evidence of intoxication, or state whether it agrees with the conclusion of the Third Department in Coon 1 Clearly, moreover, the issue is best left for another day.
Relatedly, I would reject as unpreserved defendant’s current claim that he was deprived of his constitutional right to present a defense because the trial court improperly precluded the testimony of his expert regarding his chronic alcoholism. At trial, defendant never alerted the trial court to his current claim that the testimony related to a depraved indifference mens rea. Rather, defendant argued that the testimony bore on the mens rea of recklessness and on whether the objective circumstances surrounding his reckless conduct rose to the level of depraved indifference. Having never protested that the testimony related to a depraved indifference mens rea, defendant’s claim is not preserved for review (CPL 470.05 [2]; People v Johnson, 43 AD3d at 291-292, revd on other grounds 10 NY3d 875 [2008]), and I would not review it in the interest of justice.
I disagree in part with the majority’s statement that “defendant’s mental state at the time of the collision ... is not dis-positive; rather, culpability is appropriately assessed at the time defendant made the conscious decision to embark on a course of conduct that inevitably resulted in his operation of a motor vehicle while in a state of extreme intoxication.” A defendant’s actions prior to the commission of the actus reus allegedly constituting the crime charged certainly can shed light on his mens rea at the time of the actus reus, but the defendant’s guilt turns on what his mens rea was at the time of the actus reus (cf. People v Gallagher, 69 NY2d 525 [1987]). I agree that defendant’s mens rea at the exact moment of the collision is not determinative. The focus, however, must be on defendant’s mens rea when he engaged in the conduct—which included driving at high speed on city streets through red lights—that caused the *197victim’s death.2 Thus, “culpability is appropriately assessed” at that time, not at any earlier point in time when, according to the majority, “defendant made the conscious decision to embark on a course of conduct that inevitably resulted in his operation of a motor vehicle while in a state of extreme intoxication.”
I also disagree that any “conscious decision to drink” defendant made “inevitably resulted in his operation of a motor vehicle while in a state of extreme intoxication” (emphasis added). This unexplained assertion that defendant’s operation of a motor vehicle while in a state of extreme intoxication was the inevitable consequence of some earlier decision is unsupported by the evidence and contrary to common experience. Finally, no testimony was elicited at trial about defense counsel’s contention in his memorandum of law that the evidence at trial would prove that defendant was “barely conscious due to his intoxication” (emphasis deleted). Accordingly, the majority errs in considering that contention to be evidence (indeed, an admission by defendant) that he was “barely conscious” as a result of his intoxication.
Friedman and Williams, JJ., concur with Tom, J.P.; McGuire, J., concurs in a separate opinion.
Judgment, Supreme Court, New York County, rendered June 29, 2005, affirmed.
. The majority, however, prefaces the two sentences it devotes to the opinion in People v Coon with a confounding sentence. Thus, it writes, “People v Coon . . . , relied upon by the concurrence, is distinguishable” (emphasis added). My point of course is that we need not and should not decide whether voluntary intoxication can negate the mens rea of depraved indifference. Accordingly, and just as obviously, I do not “rel[y]” upon People v Coon.
. That mens rea need not be identical to or as culpable as the mens rea of a person who decides to drive after drinking to excess. Obviously, not everyone who drives while intoxicated creates the same risk of death to others that defendant’s driving created.