While I agree with the result in the majority’s memorandum, I write separately to express my position on the necessity of a temporal connection between mens rea and actus reus in the context of depraved indifference offenses.
*932Sometime after drinking at the house of a friend in Nassau County, defendant, with a blood alcohol level over .21, got into his car and drove onto the Wantagh State Parkway in the direction of oncoming traffic at a speed of 60 miles per hour. A few minutes later, defendant collided with two vehicles, injuring the drivers, one severely. Various witnesses observed that defendant appeared not to know that he was about to crash and never attempted to avoid the accident. When told about the accident, defendant stated that he “didn’t know” what had happened and “didn’t care.” He was unable to tell the police at the scene if there was a passenger in his car and he kept falling asleep when the police tried to question him.
Defendant was charged with numerous offenses, including assault in the first degree (depraved indifference assault).1 At defendant’s nonjury trial, the People presented two theories in support of the first-degree assault charge, either of which, they argued, was sufficient to sustain a conviction. First, they argued that the nature of defendant’s behavior behind the wheel established proof beyond a reasonable doubt that (1) he was aware of what he was doing while he was driving, and (2) he, with depraved indifference to human life, continued his course of conduct. The trial court, as the trier of fact, rejected this theory, finding that defendant was so intoxicated at the time of the accident that he was oblivious to his circumstances. Thus, according to the court, defendant lacked the mens rea of depraved indifference at the time of the collision.
The People’s second theory was that defendant, prior to his state of oblivion, consciously drank himself “into a state of gross impairment.” In particular, they argued that his conscious choice to drink, get drunk, and then drive reflected a complete indifference to the foreseeable circumstances he might face while driving drunk. In other words, it was the People’s contention that defendant’s conduct, prior to getting into his car, established his guilt of the crime, including the applicable mens rea.
The defense countered that all of the evidence, including the prosecution expert’s testimony that extreme intoxication could cause micro-blackouts, showed that defendant was unaware of the danger he was creating and that if he did not know that he *933was driving in the wrong direction, he was not guilty of depraved conduct. Further, the defense argued that at the time of the collision, defendant did not have the requisite depraved state of mind to be guilty of first-degree assault.
The trial court agreed with the People, holding that a conviction for assault in the first degree could be based on defendant’s excessive drinking to a state of oblivion, knowing that shortly thereafter he would be driving himself home on heavily trafficked roads, “was evidence of depraved indifference to human life.” In so holding, the court found that “liability for depraved conduct can be predicated on the facts of this case even though defendant was not aware or appreciative of the dangers of his conduct at the time of the collision or moments before.”
In addition to assault in the first degree, Supreme Court convicted defendant of assault in the second degree, vehicular assault in the second degree, assault in the third degree, operating a motor vehicle while under the influence of alcohol (two counts), reckless driving, and other violations of the Vehicle and Traffic Law. The Appellate Division modified Supreme Court’s judgment by vacating the conviction of assault in the first degree. Relying on People v Feingold (7 NY3d 288 [2006]), the court held the evidence was legally insufficient to establish that defendant acted with the culpable mental state of depraved indifference to human life at the time he collided with the two vehicles. The court found unpersuasive the People’s contention that the mens rea component of depraved indifference assault may be satisfied by considering the defendant’s state of mind at a point much earlier in time to the accident, when he drank excessively, knowing he was going to drive himself home. The People appeal by permission of the Appellate Division.
With respect to crimes requiring mental culpability and an act or omission,
“it is a basic premise of Anglo-American criminal law that the physical conduct and the state of mind must concur. Although it is sometimes assumed that there cannot be such concurrence unless the mental and physical aspects exist at precisely the same moment of time, the better view is that there is concurrence when the defendant’s mental state actuates the physical
*934conduct” (LaFave, Substantive Criminal Law § 6.3 [a], at 451 [2d ed] [footnotes omitted]).2
Based on the foregoing, the mens rea component of depraved indifference assault may not be satisfied by considering the defendant’s state of mind at a point much earlier in time than the accident, in this instance when he was drinking at his friend’s house. As such, it cannot be argued that defendant’s mental state at the time he was drinking actuated his physical conduct. Stated differently, in this case, there is no concurrence of mens rea and actus reus. In conclusion, defendant’s state of mind when he consumed the alcohol was too temporally remote from the act of driving to support a conviction of assault in the first degree.
Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur; Judges Graffeo and Jones concur in separate concurring opinions.
Order, insofar as appealed from, affirmed in a memorandum.
. Under Penal Law § 120.10 (3), “[a] person is guilty of assault in the first degree when . . . [u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to another person.”
. Actus reus is defined as “[t]he wrongful deed that comprises the physical components of a crime and that generally must be coupled with mens rea to establish criminal liability” (Black’s Law Dictionary 39 [8th ed 2004]).