Opinion
October 29, 1990
Appeal from the Supreme Court, Queens County (Thomas, J.).
Ordered that the sentence is affirmed.
The defendant's application for a waiver of the $100 mandatory surcharge imposed by the court is premature since the defendant is incarcerated (see, People v. West, 124 Misc.2d 622; see also, People v. Velez, 150 A.D.2d 514; People v. Williams, 131 A.D.2d 525; People v. Peralta, 127 A.D.2d 803). If, at the conclusion of his imprisonment, the defendant is unable to pay the mandatory surcharge, he may move at that time for a waiver (see, CPL 420.35, 420.10 Crim. Proc. [5]; People v. Lewis, 134 A.D.2d 286; People v. Williams, supra). The defendant's claims that imposition of the surcharge violated his constitutional rights to equal protection and due process of law are not preserved for appellate review (see, CPL 470.05; People v. Ruz, 70 N.Y.2d 942; People v. Cobb, 153 A.D.2d 642). Mangano, P.J., Thompson, Kunzeman, Harwood and O'Brien, JJ., concur.