                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 17, 2015                   519265
________________________________

In the Matter of ALFONSO
   RIZZUTO,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

ROD EASTMAN, as Captain at
   Great Meadow Correctional
   Facility, et al.,
                    Respondents.
________________________________


Calendar Date:   October 27, 2015

Before:   Peters, P.J., Lahtinen, Garry and Lynch, JJ.

                             __________


     Alfonso Rizzuto, Duryea, Pennsylvania, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff of counsel), for respondents.

                             __________


      Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Washington
County) to review a determination of respondent Superintendent of
Great Meadow Correctional Facility finding petitioner guilty of
violating certain prison disciplinary rules.

      Petitioner was charged in a misbehavior report with wasting
state food, violating mess hall procedures, creating a
disturbance and being out of place. According to the misbehavior
report, petitioner, who has special dietary restrictions due to
food allergies, was given his special food tray that had been
prepared by the food service cook. Petitioner then stepped into
the regular meal line and had kidney bean creole placed on his
food tray. This was observed by the food service cook who took
                              -2-                  519265

the tray away from petitioner and had to make another special
diet tray. Petitioner then became loud, stating that food
service was retaliating against him. Following a tier II
disciplinary hearing, petitioner was found guilty of all charges
with the exception of being out of place. The determination was
affirmed on administrative appeal and this CPLR article 78
proceeding ensued.

      We confirm. The misbehavior report and testimony at the
hearing provide substantial evidence to support the determination
of guilt (see Matter of Barclay v Knowles, 79 AD3d 1550, 1550
[2010]; Matter of Antonucci v David, 306 AD2d 654, 654 [2003]).
Petitioner's denial of any misconduct and claim that the charges
were retaliatory presented a credibility issue for the Hearing
Officer to resolve (see Matter of Lopez v New York State Dept. of
Corr. & Community Supervision, 125 AD3d 1032, 1033 [2015]).
Furthermore, given the nature of the charges, a review of the
record establishes that petitioner was not denied the right to
call relevant witnesses (see Matter of Chandler v Fischer, 102
AD3d 1045, 1045 [2013]). Although there are gaps in the hearing
transcript, we do not find that meaningful review is precluded
(see Matter of Clark v Annucci, 128 AD3d 1254, 1255 [2015];
Matter of Rivera v Commissioner of DOCS, 122 AD3d 1052, 1053
[2014]). We have reviewed petitioner's remaining contentions and
find them to be without merit.

     Peters, P.J., Lahtinen, Garry and Lynch, JJ., concur.


      ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
