
    In the Matter of Charles Rizzo, Respondent, v New York State Department of Correctional Services, Appellant.
    [665 NYS2d 483]
   —Order unanimously affirmed without costs. Memorandum: Respondent appeals from an order confirming an arbitrator’s award and dismissing its cross petition to vacate the award. Petitioner was served with a notice of discipline advising him that he was terminated from his position as a correction officer based upon his assault of an inmate. Petitioner filed a grievance, which resulted in an arbitrator’s determination that he had not assaulted the inmate and must be reinstated with back pay. Supreme Court properly granted the petition to confirm the arbitrator’s award and dismissed the cross petition to vacate that award. Respondent’s contentions on appeal are based on the erroneous premise that petitioner was convicted in Alden Town Court of assault in the third degree when, in fact, the verdict finding petitioner guilty was set aside and a new trial ordered. It does not appear from the record before us that the retrial has been held. Under the circumstances, and contrary to respondent’s contention, there is no public policy issue presented (see generally, Matter of Town of Haverstraw [Rockland County Patrolmen’s Benevolent Assn.], 65 NY2d 677, 678; Matter of Rider v Oakfield-Alabama Cent. School Dist., 144 AD2d 918, 919). (Appeal from Order of Supreme Court, Erie County, Gorski, J.—Arbitration.) Present—Pine, J. P., Lawton, Hayes, Wisner and Fallon, JJ.  