Opinion
September 9, 1991
Appeal from the Supreme Court, Queens County (Rotker, 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 presently incarcerated (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 her imprisonment, the defendant is unable to pay the mandatory surcharge, she 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 her 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.