In People v. Valencia (58 AD3d 879, 873 NYS2d 97 [2d Dept 2009], affd 14 NY3d 927, 932 NE2d 871, 906 NYS2d 515 [2010]), the Appellate Division majority reversed the defendant's conviction for assault in the first degree in a vehicle collision case because the defendant did not have the mental state of depraved indifference "at the time he collided with the complainants' vehicles." (Id. at 880.)

The fact that the defendant had voluntarily gotten drunk before the accident, the Court held, could not be used to construe his mental state at the time of the crash.

Depraved indifference had to be measured at the time a crime was committed:

"We find unpersuasive the prosecution'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 than the accident, when the defendant allegedly made a conscious decision to consume an excessive amount of alcohol with the awareness that he subsequently would be operating a motor vehicle. Assuming arguendo that the evidence would support such a finding, and that such a state of mind would otherwise satisfy the culpable mental state of depraved indifference to human life, we conclude that the defendant's state of mind at the time he consumed the alcohol was too temporally remote" (58 AD3d at 880).