(concurring). I concur in the decision of the majority to affirm on the authority of People ex rel. Gneco v New York State Div. of Parole (134 AD2d 389). In addition, I would affirm for the following reasons.
The issue urged by petitioner was not raised in the petition and was not an issue before Supreme Court; thus, it is not *918properly before us for review (Matter of Crawford v Kelly, 124 AD2d 1018), unless there is no "factual showing or legal counterstep that might have been made if the argument had been tendered below” (People ex rel. Roides v Smith, 67 NY2d 899, 901). Respondent asserts that had the matter been raised below, respondent could have shown that the conditions of release delivered to petitioner contained the condition that "a releasee will not behave in such a manner as to violate the provisions of any law to which he was subject which provides for a penalty of imprisonment, nor will his behavior threaten the safety or well-being of himself or others.” The violation report specifically charges defendant with a violation of the conditions of his release "in that at approximately 5:00 p.m. on 7/11/82 the parolee attempted to burglarize an apartment located at 605 Sixth Street, Brooklyn, N. Y.”
Petitioner contends that he cannot be charged with a violation of a condition of his release because the rule containing-that condition was not filed with the Secretary of State. Assuming, arguendo, that rules pertaining to conditions of parole are required to be filed, such unfiled rules are "of no effect whatever” (People ex rel. Roides v Smith, 67 NY2d 899, 901, supra). Even in the absence of the unfiled rules, however, respondent had the authority under the existing statutes and regulations to impose conditions when releasing or paroling inmates.
The State Board of Parole is empowered to determine "which inmates * * * may be released on parole and when and under what conditions” (Executive Law § 259-c [1] [emphasis added]), and to determine "conditions of release of the person who may be conditionally released” (Executive Law § 259-c [2]). "[T]he conditions of release shall be fixed in accordance with rules prescribed by the board. Such conditions shall be substantially the same as conditions imposed upon parolees” (Executive Law § 259-g [1]). "If the inmate is released [on parole], he shall be given a copy of the conditions of parole” (Executive Law § 259-i [2] [a]). "No person shall be conditionally released unless he has agreed in writing to the conditions of release” (Executive Law § 259-g [2]). A notice of violation "shall state what conditions of parole or conditional release are alleged to have been violated, and in what manner” (Executive Law § 259-i [3] [c] [iii]).
The Rules of the Division of Parole pertaining to conditions of release, filed on March 23, 1978, were in effect at the time petitioner was charged with the violation. Those rules provided that "[p]arole or conditional release revocation proceed*919ings may be undertaken upon any violation of law or upon any violation of the release conditions or the rules and regulations of the board. The releasee is expected to comply faithfully with all conditions specified in writing at the time of his release and with all other conditions and instructions, whether oral or in writing, given him by the board, a member, an authorized representative of the board or a parole officer” (9 NYCRR 8003.1 [b]). "Parole or conditional release will not be granted to any individual unless he states in writing, in the presence of a witness, that he has read and understood the conditions of release” (9 NYCRR 8003.1 [c]). "A copy of the conditions of release, with the addition of any special conditions, shall be given to each inmate upon his release to supervision” (9 NYCRR 8003.2).
Petitioner has not alleged that the rules recited above were not properly filed; he alleges that an amendment to the rules authorizing the imposition of certain specific conditions of parole was not filed until after the date of the alleged violations. Even if the unfiled amendment is invalid, the statutes and the filed rules empowered the Board of Parole to determine and impose the conditions of petitioner’s release (Executive Law § 259-c [1]), provided the Board gave petitioner a copy of the conditions (9 NYCRR 8003.2) and petitioner agreed in writing to those conditions (Executive Law § 259-g [2]) in the presence of a witness stating that he had read and he understood the conditions of the release (9 NYCRR 8003.1 [c]).
If respondent had complied with the directives of these statutes and rules, it could have inserted into the written conditions of petitioner’s release the requirement that he "behave in such a manner as to not violate the provisions of any law to which he was subject.” Because respondent did not have the opportunity to prove that it did comply with these provisions of the statute and regulations and that it did insert in the conditions of release the particular condition that it accused petitioner of violating, we should not entertain petitioner’s argument made for the first time on appeal.
The cases of Matter of Jones v Smith (64 NY2d 1003) and People ex rel. Roides v Smith (67 NY2d 899, supra), relied upon by petitioner, can be distinguished. In those cases, the petitioners were charged with violations of prison disciplinary rules which, because they were not filed, were of "no effect whatsoever.” Petitioners could not be punished for violations of rules that did not exist. Here, however, by statute, the Board of Parole was empowered to revoke petitioner’s release, not for the violation of any rule, but for the violation of the *920written conditions of his release (Executive Law § 259-i [3] [c] [iii]; [fj [x]). The question here is whether, in the absence of the unfiled amendment to the rules, the Board was empowered to impose the conditions it alleged that petitioner violated. In my view, the statutes and filed rules conferred that power.
Denman and Davis, JJ., dissent and vote to reverse and grant the petition, in accordance with the following memorandum.