IN RE: Daniel K. MONKO (1998)

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered September 10, 1996 in Clinton County, which partially granted petitioner's application, in a proceeding pursuant to CPLR article 78, by annulling a prison disciplinary determination and remitting the matter to the Commissioner of Correctional Services for a new hearing.

In December 1995 petitioner, a prison inmate, was found guilty of violating prison disciplinary rules prohibiting possession of escape paraphernalia and possession of contraband (i.e., a homemade handcuff key).   It subsequently came to light that the tape recording of petitioner's disciplinary hearing had been damaged.   Supreme Court thereafter annulled the challenged determination and remitted the matter for a new hearing, which resulted in another decision finding petitioner guilty as charged.   Petitioner now contends that Supreme Court's remittal of the matter in lieu of expungement of the administrative decision from his prison record constituted an abuse of discretion.   We disagree.

Expungement will be ordered only where there has been a showing that “(1) the challenged disciplinary determination is not supported by substantial evidence * * *;  (2) there has been a violation of one of the inmate's fundamental due process rights, as enunciated in (Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935);  or (3) other equitable considerations dictate expungement of the record rather than remittal for a new hearing” (Matter of Hillard v. Coughlin, 187 A.D.2d 136, 140, 593 N.Y.S.2d 573, lv. denied 82 N.Y.2d 651, 601 N.Y.S.2d 580, 619 N.E.2d 658 [citations omitted] ).   No such showing has been made here.   Supreme Court's judgment is, accordingly, affirmed.

ORDERED that the judgment is affirmed, without costs.

MEMORANDUM DECISION.