(dissenting). We respectfully dissent. We cannot agree with the decision of the majority and with the determination in People ex rel. Gneco v New York State Div. of Parole (134 AD2d 389) relied upon by the majority.
In this CPLR article 78 proceeding challenging the Board of Parole’s determination to revoke his parole, petitioner, relying upon People ex rel. Roides v Smith (67 NY2d 899) and Matter of Jones v Smith (64 NY2d 1003), argues that the rules that he was charged with violating, known as "conditions of release”, were not filed with the Secretary of State at the time of the alleged violations and therefore were ineffective. While petitioner raises this argument for the first time on appeal, we may consider petitioner’s argument since respondent "suggests no factual showing or legal counterstep that might have been made if the argument had been tendered below” (People ex rel. Roides v Smith, supra, at 901). Respondent does not dispute that the general conditions of release were not filed at the time of the alleged violations but argues that they are not rules required to be filed.
NY Constitution, article IV, § 8 provides in pertinent part: "No rule or regulation made by any state department * * * except such as relates to the organization or internal management of a state department * * * shall be effective until it is filed in the office of the department of state”. This constitutional mandate is implemented in Executive Law § 102 which requires, inter alia, that a certified copy of the rules and regulations be transmitted to the Secretary of State. A rule is defined by statute to include "the whole or part of each agency statement of general applicability or regulation or code that implements or applies law * * * except such as relates to the organization or internal management of the agency” (Executive Law § 101-a [1] [b]).
Petitioner was charged with violating two unfiled rules regarding his conditions of release. Those conditions were general conditions of release applicable to all parolees. Therefore, the unfiled rules were ineffective and the determination *921to revoke his parole must be annulled (see, People ex rel. Roides v Smith, supra; Matter of Jones v Smith, supra). Moreover, we reject respondent’s argument that there was no need to file the rules since there was a "parent regulation” on file proscribing the conduct of which petitioner was found guilty. Petitioner was not charged under the so-called "parent regulation”; he was charged with having violated the unfiled rules regarding conditions of release (see, Matter of Davidson v Smith, 69 NY2d 677, 678).
Further, it is of no legal significance that the label "conditions of release” rather than the word "rules” was used to describe the terms of parole release that the petitioner allegedly violated. "The term, 'rule or regulation’, has not, it is true, been the subject of precise definition, but there can be little doubt that, as employed in the constitutional provision, it embraces any kind of legislative or quasi-legislative norm or prescription which establishes a pattern or course of conduct for the future. The label or name employed is not important and, unquestionably, many so-called 'orders’ come within the term” (People v Cull, 10 NY2d 123, 126).
The history of these conditions of release belies the respondent’s argument that they are not rules required to be filed. Former section 215 of the Correction Law was enacted in 1929 and remained in effect, with several amendments not relevant here, until January 1, 1978 when provisions relating to parole were transferred to the Executive Law (L 1977, ch 904, §§ 2, 3). That section read, in pertinent part, as follows: "Section 215. Conditions of Parole * * * The board shall adopt general rules with regard to conditions of parole and their violation and * * * make special rules to govern particular cases. Such rules, both general and special, may include, among other things, a requirement that the parolee shall not [followed by a list of requirements similar to several current general conditions of release].”
Until their repeal on January 9, 1979 conditions of parole release were filed with the Secretary of State and promulgated in the New York Codes, Rules and Regulations (NYCRR), most recently in section 1915.10 of title 7. The reason for their repeal is unclear but may relate to the retrenchment of parole functions and responsibilities in the late 1970s. In 1977 the Legislature enacted the Parole Reform Act (L 1977, ch 904) which removed the Division of Parole from the Department of Correctional Services and made it an executive department effective January 1, 1978. Pursuant to section 259 (2) of the Executive Law, the Chairman of the Parole Board on March *92223, 1978 filed with the Secretary of State a new set of rules and regulations for the Division (9 NYCRR part 8000 et seq.). Although these sections clearly were drawn from many of their predecessors in title 7, absent from these newly promulgated regulations were the conditions of parole release. It was not until May 13, 1986 that the conditions of release were reintroduced to the NYCRR when they were filed as an emergency measure amending section 8003.2 of title 9. In issuing that emergency rule, the Division stated as follows: "The Court of Appeals has recently ruled that inmates are members of the public, and that governmental conditions concerning an inmate’s conduct must be published as regulations. Given that the Division has over 26,000 persons under supervision, it is essential that the conditions of release be codified so as to facilitate the Division’s continued supervision of these persons.”
In view of the foregoing, we believe there can be no question that conditions of release are rules which must be filed with the Secretary of State; therefore we would reverse the order and grant the petition. (Appeal from judgment of Supreme Court, Wyoming County, Kane, J.—art 78.) Present—Callahan, J. P., Denman, Boomer, Lawton and Davis, JJ.