Opinion
August 9, 1990
Appeal from the Supreme Court, Bronx County (Dominic R. Massaro, J.).
This case arises out of a buy-and-bust operation conducted at an apartment from whose window defendant tossed out crack vials, containing in excess of one eighth of an ounce of cocaine, and a gun, which was determined to be operable. Police testimony established that the apartment contained no furniture, except for a couch and a TV, no food, no garbage, no kitchen utensils, no linens, no clothing, and that the front door was secured by planking. Viewing the evidence in a light most favorable to the People, as we must (People v Contes, 60 N.Y.2d 620), it cannot be said that the apartment in question was defendant's "home" within the context of Penal Law § 265.02 (4). As such, defendant's claim that the People failed to disprove that the apartment was his home is meritless.
Defendant's claim for waiver of the mandatory surcharge on the basis of his indigency is premature (see, CPL 420.35; Penal Law § 60.35; People v Perrine, 111 A.D.2d 193; People v West, 124 Misc.2d 622, 624-625). In any event, we are not persuaded that the court abused its discretion in denying defendant's application (see, People v Brown, 133 A.D.2d 463, 464, lv denied 70 N.Y.2d 930).
We have examined defendant's remaining contentions and find them to be without merit.
Concur — Ross, J.P., Asch, Kassal, Wallach and Smith, JJ.