Levine, J. P. (concurring). I concur in the resolution of the issues discussed in the majority’s decision. I wish to address briefly, however, the additional issue of whether the determination of the Tax Appeals Tribunal is objectionable, under Matter of Field Delivery Serv. (Roberts) (66 NY2d 516), as an inconsistent treatment of essentially the same transactions, in not imposing an admission charge sales tax on petitioner’s charges for viewing movies in its booths, while at the same time assessing that tax on the charges for viewing nude dancing, or viewing or speaking to a partially nude woman from the same or similar booths. In the case of the viewing of a movie in one of petitioner’s booths, the patron deposited a coin or token in a slot which activated a mechanical movie-showing device. On the other hand, with respect to the other two forms of entertainment offered from the booths, the patron deposited a coin or token in a slot activating a device to raise a screen or curtain enabling the patron to watch (or participate in) a live performance.
Thus, the charges for activating the mechanical movie-showing device in the booths at petitioner’s establishment shared a salient (and dispositive) feature with the coin-operated music-playing devices held not subject to the admissions charge sales tax in Bathrick Enters, v Murphy (27 AD2d 215, affd 23 NY2d 664). As described above, however, this feature was absent in the case of the charges with respect to the live performances accessible from the booths. Because this distinction affords a rational basis for the differential treatment of the charges in connection with the live performances at petitioner’s establishment, I find no violation of the rule enunciated in Matter of Field Delivery Serv. (Roberts) (supra). I therefore join in confirming the Tribunal’s determination.
*698Adjudged that the determination is confirmed, without costs, and petition dismissed.