
    In the Matter of Divine Justice, Respondent, v Harold J. Smith, as Superintendent of the Attica Correctional Facility, et al., Appellants.
    (Appeal No. 2.)
   Judgment unanimously affirmed. Memorandum: We annul the disposition of the Superintendent of the Attica Correctional Facility for the reasons stated in the memorandum and order at Special Term, Conable, J., Acting Supreme Court Justice, and hold that the hearing upon which the superintendent’s disposition was based was not conducted in accordance with the rules and regulations of the Department of Correctional Services (7 NYCRR Part 253). We do not remit for a new hearing for the. following reasons: A portion of the penalty imposed by the superintendent consisting of confinement in a special housing unit has already been served by petitioner-respondent. Further, the period of time that has elapsed since October, 1976, the date of the alleged acts of misconduct warranting the superintendent’s proceeding, underscores the difficulty of insuring a due process hearing to petitioner-respondent at this time. (Appeal from judgment of Wyoming Supreme Court,—art 78.) Present—Simons, J. P., Hancock, Jr., Schnepp, Doerr and Witmer, JJ.  