Opinion
January 23, 1987
Appeal from the Supreme Court, Wyoming County, Dadd, J.
Present — Doerr, J.P., Denman, Green, Pine and Balio, JJ.
Determination unanimously confirmed and petition dismissed; order and judgment entered December 30, 1985 unanimously affirmed; and appeal from order entered May 9, 1986 unanimously dismissed. Memorandum: The Hearing Officers' determinations that petitioners Adams, Baxter, Shaw, Stallings and Wiggins violated rule 104.10 ( 7 NYCRR 270.1 [b] [5] [i]) are supported by substantial evidence (see, People ex rel. Vega v Smith, 66 N.Y.2d 130, 139), and the penalties imposed for violations by those petitioners and petitioners Brown and Carroll were not excessive (see, Cooper v. Morin, 49 N.Y.2d 69, 82, rearg denied 49 N.Y.2d 801, cert denied 446 U.S. 984). We agree with Supreme Court that the Hearing Officer's decision to interview Lieutenant Block, the watch commander, out of the presence of petitioners Alim and Mu'Min was not shown to be rationally based, and the court properly vacated those hearings (see, Matter of Buckhannon v. Kelly, 124 A.D.2d 984; People ex rel. Bradley v Smith, 115 A.D.2d 225, lv denied 67 N.Y.2d 604). The reason given by the Hearing Officer for denying copresence was that Block was on duty as watch commander, yet the record shows that he was interviewed during his hours on duty in that capacity. Respondents' appeal from denial of their motion to renew must be dismissed for failure to obtain the necessary leave to appeal (CPLR 5701 [b] [1]). We have examined petitioners' remaining argument and find it without merit.