
    In the Matter of David Zaire, Petitioner, v Dale Artus, as Superintendent of Clinton Correctional Facility, Respondent.
    [851 NYS2d 894]
   Petitioner, a prison inmate, was charged in a misbehavior report with refusing a direct order and violating facility count procedures. The report was issued after petitioner slept through an announced inmate count with his cell lights off, thus delaying the count. Following a tier II disciplinary hearing, petitioner was found guilty of the count procedure violation. That determination was affirmed upon administrative appeal and this CPLR article 78 proceeding ensued.

Contrary to petitioner’s assertion, the misbehavior report, together with petitioner’s statements indicating his awareness of the daily counts, provide substantial evidence to support the determination that he violated count procedures, notwithstanding dismissal of the remaining charge (see Matter of Moore v Portuondo, 267 AD2d 537, 537 [1999]). Accordingly, we confirm.

Cardona, P.J., Mercure, Peters, Spain and Rose, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.  