dissents and votes to annul the determinations and dismiss the charges with the following memorandum. A review of the entire proceeding leads me to the inescapable conclusion that the officers were deprived of a fair hearing. Accordingly, I dissent, and vote to annul the administrative determinations appealed from.
Although the charges against the three police officers may have been supported by substantial evidence, the administrative determinations should nevertheless be annulled as the procedures employed and the numerous improprieties committed all served to deny the officers their right to due process.
It appears that Commissioner Augustine had prejudged the guilt of these officers even before the hearings were held, thus rendering the hearings a sham from the very beginning. The Commissioner does not deny making such a prejudgment but relies upon the fact that it was Deputy Commissioner Lucas who actually presided over the hearings, and that any predetermination the Commissioner may have made was therefore irrelevant. Nevertheless, the Deputy Commissioner’s sole function was to hold the hearings and make a recommendation to the Commissioner, and it was the obligation of Commissioner Augustine alone to make the final determinations as to the guilt or innocence of the officers.
In addition, Deputy Commissioner Lucas, who presided over the hearings, had privately admitted his intention to diligently prosecute these officers so as to make an example of them. At the hearing, however, he declined to recuse himself or to testify, despite repeated objections and requests by the attorney for the officers. In view of his admitted intentions, the Deputy Commissioner should have disqualified himself as the Hearing Officer (see, Matter of Aiello v Tempera, 65 AD2d 791). Furthermore, it appears that the Hearing Officer had engaged in ex parte communications with the Corporation Counsel who prosecuted these matters, thereby tainting his determinations (see, Matter of Avery v Rechter, 56 AD2d 963). Finally, not only did the Deputy Commissioner make a recommendation of guilt before the transcripts of the hearings were received and reviewed, the Commissioner himself approved the findings before the transcripts of the hearings were made available for review.
While the Hearing Officer may have been in possession of all pertinent facts and thus any technical omissions may be excusable (see, e.g., Matter of Taub v Pirnie, 3 NY2d 188), the same cannot be said of the Commissioner, who was charged *914with the sole responsibility of making the final determinations based upon the Hearing Officer’s recommendation. The officers were entitled to have the Commissioner review the transcripts so that he could make an informed judgment as to the recommendation made (see, Matter of Weekes v O’Connell, 304 NY 259).
In general, the tenor of the hearing was such to deprive the officers of a fair trial. "[N]o essential element of a fair trial can be dispensed with * * * without rendering the administrative determination subject to annulment upon review” (Matter of Simpson v Wolansky, 38 NY2d 391, 395). As such elements were absent in the instant case, the Commissioner’s determinations should not be allowed to stand.