—[*1] David Zaire, Dannemora, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

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.