
    In the Matter of Frank Conte, Petitioner, v Carl D. Berry, as Superintendent of Woodbourne Correctional Facility, Respondent.
    [605 NYS2d 969]
   —Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Sullivan County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner has failed to support his claim that there was a violation of 7 NYCRR 253.1 (b); the person who prepared the misbehavior report neither acted as a Hearing Officer nor does it appear that he took part in the deliberations. Furthermore, the misbehavior report provided substantial evidence to support the determination that petitioner disobeyed a direct order and was out of place. We have examined petitioner’s remaining contention and find it lacking in merit.

Weiss, P. J., Mikoll, Yesawich Jr., Mahoney and Casey, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.  