I vote to affirm because I conclude that the City of Rochester’s juvenile curfew ordinance must be invalidated since the law conflicts, in part, with the Family Court Act. I further believe that the objectionable portion of the curfew law cannot be severed from the remainder of the ordinance and, consequently, the ordinance is invalid in its entirety.
Rochester’s juvenile curfew ordinance specifies that children under the age of 17 cannot be in a public place between 11:00 p.m. and 5:00 a.m. Sunday through Thursday and from 12:00 a.m. to 5:00 a.m. on Friday and Saturday. There are delineated exceptions to the curfew, as set forth by the majority, where the minor can demonstrate that his or her conduct was covered by an exception. In drafting the curfew statute, the City Council decided that a minor who breaks curfew commits a violation as defined in the Penal Law. Under section 10.00 (3) of the Penal Law, a violation is an offense punishable by up to 15 days in jail. The curfew ordinance authorizes a police officer to “detain” or “take a minor into custody” if the officer reasonably believes that the minor has violated curfew and that none of the enumerated exceptions to the curfew restrictions apply (Rochester City Code § 45-6 [B]).
The State Constitution’s “home rule” provision (art IX, § 2) “confers broad police power upon local government relating to the welfare of its citizens” (New York State Club Assn, v City of New York, 69 NY2d 211, 217 [1987], affd 487 US 1 [1988]). This grant of authority includes the ability of a municipality to enact local laws regarding the “protection, order, conduct, safety, health and well-being of persons or property” within its borders (NY Const, art IX, § 2 [c] [ii] [10]; see Municipal Home Rule Law § 10 [1] [ii] [a] [12]). There are, however, important limitations on municipal police powers (see New York State Club Assn, v City of New York, 69 NY2d at 217). First, under the doctrine of conflict preemption, a “local government . . . may not exercise its police power by adopting a local law inconsistent with constitutional or general law” (id.). Second, under the doctrine of field preemption, a municipality “may not exercise its police power when the Legislature has restricted such an exercise by preempting the area of regulation” (id.; see e.g. *52Albany Area Bldrs. Assn, v Town of Guilderland, 74 NY2d 372, 377 [1989]). Field preemption may occur by express legislative direction or may be “implied from a declaration of State policy by the Legislature ... or from the fact that the Legislature has enacted a comprehensive and detailed regulatory scheme in a particular area” (Consolidated Edison Co. of NY. v Town of Red Hook, 60 NY2d 99, 105 [1983]).
Nothing in the laws of this State indicates that the Legislature intended to prohibit municipalities from enacting juvenile curfews. Through the exercise of its police powers, a municipality may be able to justify the need for a juvenile curfew as a matter of permissible local concern. A curfew that is designed to reduce juvenile crime and victimization has “some fair, just and reasonable connection” to the promotion of the safety and welfare of vulnerable minors (People v Bunis, 9 NY2d 1, 4 [1961] [internal quotation marks omitted]). Clearly, the City of Rochester was motivated by laudable public safety concerns in attempting to get children off the streets late at night and into the safety of their homes.
But the curfew ordinance in this case raises a conflict preemption concern because the Family Court Act limits the instances when police can take children into custody. Section 305.2 (2) of the Family Court Act specifies that a police officer “may take a child under the age of sixteen into custody without a warrant in cases in which he may arrest a person for a crime under article one hundred forty of the criminal procedure law” (emphasis added). The term “crime” includes only misdemeanors and felonies, not violations (see Penal Law § 10.00 [6]). An infraction of the Rochester ordinance results in a “violation,” punishable by up to 15 days in jail. Because a violation is not a “crime” for the purposes of section 305.2 (2), it necessarily follows that the constraints of Family Court Act § 305.2 prohibit the City of Rochester from authorizing the custodial detention of children aged 15 and under (see Matter of Victor M., 9 NY3d 84, 87 [2007]; Matter of Michael G., 99 Misc 2d 699, 701 [Family Ct, Rockland County 1979]). Based on conflict preemption principles, this provision of Rochester’s curfew ordinance contradicts the Family Court Act and is therefore invalid.*
*53The City of Rochester responds that its ordinance does not violate state law because it merely authorizes the police to engage in the “temporary detention” of a child, not to make an arrest. Semantics aside, the reality is that the ordinance permits a police officer to take custody of a minor, perhaps handcuff the offender, conduct a pat-down search (which could lead to the discovery of illegal contraband or a weapon), place the child in the back of a police car and transport the child to a detention facility. This, in my view, bears all of the hallmarks of a traditional arrest, not some short-term custodial intervention conducted solely for the safety and welfare of the child detained. And the punishment that can be inflicted for a violation of Rochester’s curfew ordinance makes it easily distinguishable from Matter of Shannon B. (70 NY2d 458 [1987]), which upheld the authority of a police officer to detain a truant student, because truancy, unlike a violation of Rochester’s curfew law, is not punishable by incarceration.
Nor is it possible to sever the offending provision of the ordinance from the remainder of the law. Under our traditional severability analysis, the
“ ‘question is in every case whether the legislature, if partial invalidity had been foreseen, would have wished the statute to be enforced with the invalid part exscinded, or rejected altogether. The answer must be reached pragmatically, by the exercise of good sense and sound judgment, by considering how the statutory rule will function if the knife is laid to the branch instead of at the roots’ ” (CWM Chem. Serus., L.L.C. v Roth, 6 NY3d 410, 423 [2006], quoting People ex rel. Alpha Portland Cement Co. v Knapp, 230 NY 48, 60 [1920], cert denied 256 US 702 [1921]).
In conducting this review, we first examine
“the statute and its legislative history to determine the legislative intent and what the purposes of the new law were, and second, an evaluation of the courses of action available to the court in light of that history to decide which measure would have been enacted if partial invalidity of the statute had been foreseen” (CWM Chem. Serus., 6 NY3d at 423, quoting Matter of Westinghouse Elec. Corp. v Tully, 63 NY2d 191, 196 [1984]).
*54Rochester’s curfew ordinance does not contain a severability provision and nothing in the record before us indicates that the City Council considered this issue. From a practical perspective, severing the provision of the law that conflicts with the Family Court Act would make the curfew apply only to persons who are 16 years old. It is unlikely that the City of Rochester was interested in such a limited curfew, especially since the enactment of the ordinance was motivated in significant part by the murders of three local children, all of whom were under the age of 16. And restricting the curfew only to 16 year olds would result in a law that covers a much smaller percentage of the minors that the City Council was seeking to protect. I therefore conclude that the objectionable portion of the ordinance cannot be severed and Rochester’s curfew law is void in its entirety.
The dissent concludes that there is no preemption problem. But this ignores the fact that a curfew infraction is a “violation” as that term is defined in the Penal Law, thereby authorizing the possible imposition of a sentence of up to 15 days in jail for a minor who breaks curfew.