MATTER OF CURRY v. KELLY

Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: Petitioner appeals from a judgment which, instead of annulling a prison disciplinary determination because of the Hearing Officer's failure to hear the testimony of petitioner's witness, remitted the matter to the Hearing Officer to take such testimony. In these circumstances, equity dictates that expungement of the record, rather than remittitur, is the proper remedy (see, Matter of Allah v. LeFevre, 132 A.D.2d 293, 295; Matter of Cunningham v. LeFevre, 130 A.D.2d 809, 810; Matter of Vogelsang v Coombe, 105 A.D.2d 913, affd 66 N.Y.2d 835; see also, Matter of Barnes v. LeFevre, 69 N.Y.2d 649, 650). The breach of petitioner's rights was egregious and the charges against him relatively minor, resulting in a total of 30 days' confinement to cell but no loss of good time. Because petitioner has served his punishment, there is no point in remitting the matter. Finally, the lapse of over 2 1/2 years since the hearing makes it unlikely that the witness, if still incarcerated, could testify meaningfully about this minor incident.