The issue that the majority believes it cannot address is a legal, rather than a factual, one; that much is certain. And it is an open question that deserves our attention. The Appellate Division, finding no New York case on point, was forced to seek persuasive authority from intermediate courts in Texas and Florida. Yet the majority dismisses the People’s appeal, because the issue was not preserved in the trial court, so that the precedent in New York remains the one that the First Department chose from out-of-state sources.
As a preliminary matter, the Court of Appeals “is not bound by the Appellate Division’s characterization of [an] order, and must ‘determine for itself whether a reviewable legal question exists” (People v D’Alessandro, 13 NY3d 216, 219 [2009], quoting People v Giles, 73 NY2d 666, 670 [1989]). Here, although the Appellate Division stated that it was modifying Supreme Court’s judgment “on the facts” (85 AD3d 431, 432 [2011]), its rationale is entirely legal. The Appellate Division seems to have thought it was engaged in weight of the evidence review (see id.)-, but it did not “weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” (People v Bleakley, 69 NY2d 490, 495 [1987], quoting People ex rel. MacCracken v Miller, 291 NY 55, 62 [1943]). Rather, its decision turned on a purely legal issue—whether labor costs can be included as part of “the cost of replacement” contemplated by Penal Law § 155.20 (1). Because the issue was not preserved, the Appellate Division could have reached the issue only “[a]s a matter of discretion in the interest of justice” (CPL 470.15 [3] [c]; see CPL 470.15 [6] [a]).
The majority believes that under the current statutory scheme, the lack of preservation means that the legal issue that the Appellate Division decided is not a question that we can reach. This odd circumstance results from a restrictive reading of “question of law” in CPL 470.05. That statute provides that
“[flor purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court *948during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same” (CPL 470.05 [2]).
The majority infers, so the argument goes, that the unpreserved issue in this case is beyond our review because other statutes require that, upon an appeal to the Court of Appeals from an order of an intermediate appellate court reversing or modifying a criminal court’s decision, we may consider and determine only “question[s] of law” (with certain further provisos not pertinent here) (CPL 470.35 [2] [a], [b]; see also CPL 450.90 [2] [a]) and questions concerning the legality of the intermediate court’s corrective action {see CPL 470.35 [2] [c]; see also CPL 450.90 [2] [b]). I disagree with this inference.
In my view, when the Legislature wrote the provision stating that a “question of law ... is presented” to an appellate court upon preservation in the trial court (CPL 470.05 [2]), it intended to ensure that an appellate court would have no obligation to pass on an unpreserved non-fundamental issue pertaining to a criminal conviction,* but that the Appellate Division could do so as a matter of discretion (CPL 470.15 [6] [a]). We have for many years interpreted CPL 470.05 (2) to require that a question must have been preserved in the trial court before we may reach it (see e.g. People v Robinson, 36 NY2d 224, 228 [1975]; People v Michael, 48 NY2d 1, 5-6 [1979]; People v Cona, 49 NY2d 26, 33 [1979]; People v Albro, 52 NY2d 619, 623 n [1981]; People v Dercole, 52 NY2d 956, 957 [1981]). As the majority notes, this interpretation arises from “our precedents” (majority mem at 946, quoting People v Caban, 14 NY3d 369, 373 [2010]). There is nothing in CPL 470.05 that prohibits this Court from reviewing a legal issue, with respect to a ruling or instruction of a criminal court during a trial or proceeding where, as here, the question was reached by the Appellate Division in the exercise of its discretionary power to reach an unpreserved legal issue. The fact that the nisi prius court did not rule on an important question of law does not, in my view, give the Appellate Division license to decide the issue of law without fear of review, as the *949Appellate Division has done here. Indeed, I doubt very much that the Appellate Division would generally seek such authority, being far more comfortable knowing that this Court will be the final arbiter. I cannot accept that the Legislature intended to bring about the unfortunate procedural circumstance in which the Appellate Division decides a legal issue for the State, yet we are powerless to reach it.
As for the disposition of defendant’s appeal, I agree with the majority’s analysis, but, as I have explained, I cannot agree with its dismissal of the People’s appeal. Consequently, I dissent.
Chief Judge Lippman and Judges Ciparick, Grafpeo, Read and Jones concur in memorandum; Judge Pigott dissents in part in an opinion in which Judge Smith concurs.
On defendant’s appeal, order, insofar as appealed from, affirmed, and People’s appeal dismissed, etc.
There are well-known exceptions when the alleged error is so fundamental that it affects “the organization of the court or the mode of proceedings prescribed by law” (People v Patterson, 39 NY2d 288, 295 [1976]; see also People v Agramonte, 87 NY2d 765, 769-770 [1996]), or concerns the lawfulness of a sentence (People v Samms, 95 NY2d 52, 55-57 [2000]).