Levine, J. (concurring in part and dissenting in part). We respectfully disagree with so much of the majority’s decision as upholds respondent’s denial of petitioner’s religiously based dietary request. First, contrary to what the majority’s decision suggests, petitioner is only seeking an accommodation to his religious beliefs equivalent in dietary content to accommodations already made for the religious dietary practices of Muslim and Jewish inmates. Petitioner, in his administrative grievances and his petition and sworn reply affidavit herein, clearly and unmistakably states that he would be satisfied if correctional authorities provided him "with the exact same dietary accommodations that respondents already make for Jewish and Muslim prisoners. I ask that respondents provide a protein substitute when red meat or poultry is served, in the same manner as they do when pork is on the menu. I also ask, in the alternative, that I be permitted to eat the same alternative kosher meal that is now being served to Jewish inmates” (emphasis supplied).
With the foregoing in mind, we turn to the penological interests identified by respondent as militating against petitioner’s request, which the majority finds are sufficient to outweigh petitioner’s rights under NY Constitution, article I, § 3. Those penological interests are outlined in the affidavit of Earl Moore, the Department of Correctional Services (hereinafter DOCS) official referred to in the majority’s decision. Moore states that the refusal to accede to petitioner’s dietary request is based on budgetary, administrative and security concerns. As to the specific budgetary and administrative concerns involved in granting petitioner’s request, Moore avers that there is no well-defined Rastafarian diet and, therefore, it would be unfeasible for DOCS to meet the varying individual dietary demands of the approximately 300 Rastafarian inmates in the State correctional system. He further states that DOCS lacks the resources and space to provide the additional equipment for the preparation of spe*125cialized diets, and lacks the funds to contract outside the facilities for meals accommodating the religious beliefs of Muslim or Rastafarian inmates.
As demonstrated above, however, petitioner is not seeking institutional compliance with a strict Rastafarian diet, but merely the elimination of the most religiously objectional elements of the regular prison fare, which would be satisfied by providing him with meatless meals or the kosher diet provided for Jewish inmates. It is noteworthy that the Rastafarian plaintiffs in the previous Federal class action (see, Benjamin v Coughlin, 708 F Supp 570, affd 905d 571, cert denied 498 US 951) never clearly limited their requests for relief to that sought by petitioner here, and it was because of the lack of clarity of their dietary request that the Federal appeals court rejected their claim for relief (see, Benjamin v Coughlin, 905d 571, 580, cert denied 498 US 951, supra).
Although respondent points out that petitioner’s request represents a compromise of customary Rastafarian dietary tenets, respondent has not raised any issue regarding the sincerity of petitioner’s request or alleged that it is not actually based upon his religious convictions. That petitioner’s conscience would be satisfied by something less than full compliance with the Rastafarian dietary mandates he would follow outside of prison is not a valid reason to reject his request; to do so on this ground would, in effect, put DOCS in the untenable position of promoting religious orthodoxy (see, Reed v Faulkner, 842d 960, 963; Teterud v Burns, 522d 357, 360). The majority commits the same error in asserting that petitioner’s diet request "no more adequately satisfies petitioner’s religious beliefs than what is now offered”. It would follow, therefore, that respondent’s institutional concerns based upon the wide dietary variations in Rastafarian religious observance should not be entitled to any significant weight in the balancing process required under the State constitutional challenge of prison regulations here.
Further, once the concern regarding varied Rastafarian dietary demands is removed from the equation, respondent’s budgetary and administrative objections appear to be vague and unsubstantiated. The record here establishes that (1) DOCS already has devoted the budgetary and administrative resources necessary to furnish Muslim inmates with a protein-rich, meatless diet as often as twice a week when pork is included in the regular menu at correctional facilities *126throughout the system, (2) correctional facility administrative burdens have been assumed in order to permit Muslim inmates to prepare and eat their meals in their cells during the month-long Muslim holiday of Ramadan, and (3) in one major correctional facility, Jewish inmates may elect to be provided a strictly kosher diet in content and preparation, and in at least five other facilities Jewish inmates may receive a kosher-acceptable diet consisting of fruits and vegetables, uncooked rice or potatoes and cheese, canned tunafish and peanut butter.
These established facts strongly suggest that the additional budgetary and administrative burdens involved in granting petitioner’s request to furnish him with the simple, basic, meatless diet presently provided daily to Jewish inmates and up to twice a week to Muslim inmates would be inconsequential. This is sufficient to distinguish this case from Matter of Malik v Coughlin (158 AD2d 833, 834), principally relied upon by respondent, where the inmate’s request included "ritually mandated preparation of food”, as well as a special diet.*
Thus, on this record, and unless we uncritically accept respondent’s conclusory assertions whole cloth, the budgetary and administrative burdens identified by respondent to justify the denial of petitioner’s dietary request, if they are not illusory, certainly do not outweigh petitioner’s legitimate rights to exercise the precepts of his religion (see, People v Lewis, 68 NY2d 923, 925).
Alternatively, Moore suggests a penological security interest in denying petitioner’s dietary request, which the majority also relies upon in upholding respondent’s determination. The averment describing respondent’s security concern is, in its entirety, as follows: "In addition, inmates resent special treatment being given to any one group. The large number of inmates together at mealtime could create substantial tension and represent potential security breach.” We do not believe that petitioner’s concededly valid right to practice, at least in some minimal way, the dietary precepts of his religion while in prison should be so lightly overcome on the basis of this kind of conjectural, unsubstantiated assertion. Moreover, fears of inmate resentment apparently did not prevent respondent *127from giving Muslim and Jewish inmates special dietary treatment. It was incumbent upon respondent to submit evidence establishing a reason in fact for this otherwise arbitrary and discriminatory response to petitioner’s religiously based request (see, Reed v Faulkner, 842d 960, 964 [Posner, J.], supra). In the absence of some nonspeculative explanation for accommodating Muslim and Jewish inmates’ but not petitioner’s religious dietary precepts, petitioner’s religious needs are deliberately being treated differently from those of Muslim and Jewish inmates for no reason at all; "this is a denial of equal protection of the laws in an elementary sense” (supra, at 964).
For all the foregoing reasons, we would modify the judgment by reversing so much thereof as dismissed petitioner’s claim for relief regarding the provision of a diet not violative of his religious beliefs during his incarceration, and granting his petition to the extent of enjoining respondent to provide either a meatless diet for petitioner or the same kosher diet presently provided Jewish inmates at the correctional facility where petitioner is incarcerated.
Mikoll, J. P., Casey and Harvey, JJ., concur; Levine and Mahoney, JJ., concur in part and dissent in part in a separate opinion by Levine, J.
Ordered that the judgment is affirmed, without costs.
The case of Matter of Majid v Leonardo (172 AD2d 914) is also distinguishable, because in that case the inmate sought a diet including ritually slaughtered meat or an unspecified alternative diet consistent with his beliefs.