
    In the Matter of Pete Arroyo, Petitioner, v Thomas A. Coughlin, as Commissioner of the Department of Correctional Services, et al., Respondents.
   Determination unanimously annulled on the law and matter remitted to respondent Superintendent for further proceedings in accordance with the following Memorandum: In this CPLR article 78 proceeding, petitioner challenges a prison disciplinary determination that he violated institutional rules by organizing and participating in a prohibited demonstration at the Attica Correctional Facility and damaging State property by breaking windows in the prison. Respondents concede that the Hearing Officer’s failure to review a videotape of the incident requires us to annul the determination. Thus, the primary issue is whether a rehearing is the appropriate remedy as respondents contend, or whether petitioner is entitled to expungement. Since the misbehavior report and the hearing testimony constitute substantial evidence to support the determination (see, People ex rel. Vega v Smith, 66 NY2d 130), and because the charges against petitioner are serious and petitioner has served only a part of his penalty, we conclude that a new hearing is the proper remedy in this case (see, Matter of Dawson v Coughlin, 178 AD2d 946; cf., Matter of Hartje v Coughlin, 70 NY2d 866, 868). Petitioner’s remaining contentions lack merit. (Article 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.) Present — Green, J. P., Pine, Balio, Boehm and Davis, JJ.  