MEMORANDUM AND ORDER

It is hereby ORDERED that the determination be and the same hereby is unanimously annulled on the law without costs, the petition is granted, and the matter is remitted to respondent for further proceedings in accordance with the following Memorandum:

Respondent correctly concedes in this CPLR article 78 proceeding that the Board of Parole (Board) erred in rescinding petitioner's open parole release date in reliance upon findings of guilt with respect to two charges in a prison disciplinary proceeding that were reversed and expunged on administrative review. "The Board is empowered to rescind a decision granting an open parole release date when there is substantial evidence that an inmate has committed `significant misbehavior[,]' including the violation of a prison disciplinary rule" ( Matter of Bishop v. Smith, 299 A.D.2d 777, 778). Here, although there was substantial evidence supporting the finding of guilt on one of the three charges ( see e.g. Matter of McHaney v. Albaugh, 280 A.D.2d 963, lv denied 96 N.Y.2d 716), the Board should not have considered the findings of guilt on the two remaining charges that were subsequently reversed and expunged, or the conduct underlying such charges ( see Matter of Garrett v. Coughlin, 128 A.D.2d 210, 212-213). As respondent further correctly concedes, it is impossible to ascertain whether the Board would have reached the same determination had it not considered the charges that were reversed and expunged. We therefore annul the determination, grant the petition, and remit the matter to respondent for a de novo hearing before a different panel of the Board, which will consider only the sustained charge in determining whether to rescind petitioner's open parole release date ( see Matter of Quartararo v. New York State Div. of Parole, 224 A.D.2d 266, lv denied 88 N.Y.2d 805; see also Matter of King v. New York State Div. of Parole, 190 A.D.2d 423, 434-435, affd 83 N.Y.2d 788; Matter of Rentz v. Herbert, 206 A.D.2d 944, 945, lv denied 84 N.Y.2d 810).