We respectfully dissent. Even accepting respondents’ assertion that petitioner’s decision to leave the hearing effectively waived any claim he may have had regarding the failure to electronically record his testimony, petitioner presumably had no similar control over Maurice Ruffin. For this reason, we find it difficult to subscribe to the majority’s view that petitioner received all the consideration to which he lawfully was entitled, i.e., the opportunity to recreate his defense. Additionally, although this Court previously has declined to annul administrative determinations based upon intermittent gaps in the underlying records (see, e.g., Matter of Fletcher v Selsky, 199 AD2d 865, lv denied 83 NY2d 753; Matter of Wynter v Jones, 135 AD2d 1032), the complete absence of Ruffin’s testimony cannot, in our view, fairly be characterized as an "intermittent” gap,* particularly in view of petitioner’s allegation that the inmate whom he allegedly threatened had confided in Ruffin of his plan to fabricate charges against petitioner in an effort to gain a transfer to another correctional facility. In short, we believe the absence of such potentially exculpatory testimony—testimony over which petitioner had no direct control—precludes meaningful review of the underlying disciplinary hearing (compare, Matter of Rodriguez v Coughlin, 167 AD2d 671).
As to the appropriate remedy, we are mindful that expungement is required only when (1) the determination is not supported by substantial evidence, (2) one of the inmate’s fundamental due process rights has been violated, or (3) other equitable considerations warrant expungement rather than remittal for a new disciplinary hearing (see, Matter of Hillard v Coughlin, 187 AD2d 136, 140, lv denied 82 NY2d 651). Here, in view of the fact that petitioner’s penalty apparently has been satisfied, and taking into consideration the amount of time that has elapsed and the potential unavailability of certain witnesses, we believe that expungement is the appropriate remedy (cf., Matter of Vogelsang v Coombe, 105 AD2d 913, 914, affd 66 NY2d 835). Accordingly, we would annul the determination, grant the petition and direct that all entries in petitioner’s record relating to the underlying disciplinary proceeding be expunged.
We are, however, satisfied that the five-minute gap representing the discussion between the Hearing Officer and petitioner regarding certain evidence has been adequately reconstructed.