Opinion
September 9, 1991
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 in view of the defendant's incarceration (see, People v. West, 124 Misc.2d 622; see also, People v. Jones, 166 A.D.2d 724; People v. Velez, 150 A.D.2d 514). 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 [5]; People v. Jones, supra; People v. Lewis, 134 A.D.2d 286).
The defendant's challenge to the imposition of the surcharge as violative of his constitutional rights to equal protection and due process of law is 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, Sullivan, Harwood and Miller, JJ., concur.