Opinion
September 18, 1997
Appeal from Supreme Court, New York County (Jeffrey Atlas, J.).
The specific claim raised on appeal with respect to the Sandoval ruling is unpreserved and we decline to reach it.
Defendant's challenge to the court's predeliberation jury instruction concerning the general nature of the deliberative process, which defendant characterizes as an " Allen charge," is unpreserved and we decline to review it in the interest of justice. Were we to review it, we would find that the instruction, while somewhat deficient, does not warrant reversal ( People v. Alvarez, 86 N.Y.2d 761, 763).
Defendant's claim that the mandatory surcharge should be waived because of his alleged indigency is premature ( People v. Ramirez, 208 A.D.2d 381, lv denied 84 N.Y.2d 1037). The proper procedure is to move for resentencing pursuant to CPL 420.10 (5) ( see, People v Velasquez, 198 A.D.2d 25, lv denied 82 N.Y.2d 932).
Concur — Murphy, P.J., Sullivan, Ellerin and Williams, JJ.