The petitioner was charged on September 15, 2005 with violating disciplinary rules 113.25 ( 7 NYCRR 270.2 [B] [14] [xv]) and 114.10 ( 7 NYCRR 270.2 [B] [15] [i]), which prohibit possession of a controlled substance and smuggling, respectively, based on an incident that purportedly was observed by a corrections officer present in the area of the Green Haven Correctional Facility, where the petitioner was involved with a class tour for non-inmate law students visiting the facility. The hearing officer erred in receiving the testimony of the corrections officer, to the effect that chemical testing showed that the substance seized was brown heroin, without requiring him to lay a foundation with respect to the nature of the test and the procedures utilized (see Matter of Lopez v Kramer, 118 AD2d 572, 573; Matter of Kincaide v Coughlin, 86 AD2d 893), and in failing to call as a witness the prison official who allegedly tested the substance ( see Matter of Giannattasio v Coombe, 237 AD2d 287, 288; cf. Matter of Cepeda v Goord, 39 AD3d 640, 641). Without the above testimony, the findings of the hearing officer, and so much of the determination dated December 20, 2005, as, in effect, confirmed the findings of the hearing officer that the petitioner was guilty of violating disciplinary rules 113.25 ( 7 NYCRR 270.2 [B] [14] [xv]), and 114.10 ( 7 NYCRR 270.2 [B] [15] [i]), were not supported by substantial evidence ( see Matter of Giannattasio v Coombe, 237 AD2d 287). In view of the error in the admission into evidence of the test results and in light of the substantial amount of time that has passed since the hearing was conducted, we conclude that the appropriate remedy is expungement of the petitioner's institutional record rather than remittal for a new hearing ( see Matter of Afrika v Selsky, 199 AD2d 315, 316).

This determination was affirmed on administrative review, and this CPLR article 78 proceeding ensued. Petitioner contends that a proper foundation for reliance on the positive NIK test result was not established pursuant to 7 NYCRR 1010.5. That regulation "outlines the proceedings to be followed by correctional facilities in identifying suspected contraband drugs and in conducting related disciplinary hearings" ( Matter of Giannattasio v Coombe, 237 AD2d 287, 288). Pursuant to 7 NYCRR 1010.5 (d), the record of a disciplinary hearing must contain certain documents, including "a statement of the scientific princip[les] and validity of the testing materials and procedures used." Here, the required document was not admitted into evidence at the hearing and was not provided to petitioner, despite his specific requests and objections.

Petitioner asserts, among other things, that that part of the determination finding him guilty of drug possession cannot be sustained because he was not provided with a copy of the statement of scientific principles and validity of testing materials and procedures used. Based upon our review of the record, we agree. The pertinent regulation requires that such document be served upon the inmate where the positive result of a test of suspected contraband drugs is used as evidence at a disciplinary hearing ( see 7 NYCRR 1010.5 [d]; see also Matter of Giannattasio v Coombe, 237 AD2d 287, 288). Inasmuch as respondent concedes that such documentation was not provided and no testimony was adduced concerning the testing procedures employed, substantial evidence does not support that part of the determination finding petitioner guilty of drug possession ( see Matter of Ruzas v Goord, 268 AD2d 742, 744; Matter of Davis v McClellan, 202 AD2d 770, 771). Accordingly, that part of the determination must be annulled and, to the extent that a loss of good time was imposed, the matter must be remitted for a redetermination of the penalty relative to the remaining charges ( see Matter of Tevault v Fischer, 61 AD3d 1161, 1163; Matter of Torres v Fischer, 53 AD3d 1008, 1009).

However, the other documents required by 7 NYCRR 1010.5, concerning the testing procedure and instructions, are not. Moreover, no testimony concerning the testing procedure or instructions was elicited from the correction officer who conducted the test. Accordingly, the results of the test cannot be considered as evidence of petitioner's guilt ( see Matter of Hernandez v. Selsky, 306 AD2d 595, 596, lv denied 100 NY2d 514; Matter of Ruzas v. Goord, 268 AD2d 742, 743; Matter of Giannattasio v. Coombe, 237 AD2d 287, 288; Matter of Davis v. McClellan, 202 AD2d 770, 770-771). Absent the results of the test, the determination with respect to this charge is not supported by substantial evidence and must be annulled to that extent ( see Matter of Hernandez v. Selsky, supra at 596; Matter of Ruzas v. Goord, supra at 744; Matter of Giannattasio v. Coombe, supra at 288; Matter of Davis v. McClellan, supra at 770-771).

This CPLR article 78 proceeding ensued. Petitioner contends that the determination is not supported by substantial evidence because the Hearing Officer did not admit into the record at the hearing various forms relating to the drug testing procedure as required by 7 NYCRR 1010.5. That regulation "outlines the proceedings to be followed by correctional facilities in identifying suspected contraband drugs and in conducting related disciplinary proceedings" (Matter of Giannattasio v. Coombe, 237 A.D.2d 287, 288). Notably, it states that the record of the disciplinary hearing must include: Contrary to respondent's argument, this issue was preserved at the administrative level and, thus, presents a question of law for our review (cf. Matter of Khan v. New York State Dept. of Health, 96 N.Y.2d 879, 880 [2001]).