Opinion
December 15, 1997
Appeal from the Supreme Court, Queens County (Giaccio, J.).
Ordered that the judgment is affirmed.
The defendant seeks to have his conviction for criminal possession of stolen property in the fourth degree dismissed on the ground that it is an inclusory concurrent count of the crime of criminal possession of stolen property in the third degree ( see, CPL 300.40 [b]). However, his plea of guilty forecloses him from raising this claim ( see, People v. Walton, 41 N.Y.2d 880).
There is no indication in the record that the defendant applied at the conclusion of his term of imprisonment for resentencing pursuant to CPL 420.10 (5) on the basis that payment of the mandatory surcharge would "work an unreasonable hardship" (CPL 420.35). Therefore, the defendant's claim that the mandatory surcharge should be waived is unpreserved for appellate review ( see, People v. Teele, 157 A.D.2d 592; People v. Carlton, 133 A.D.2d 776).
Miller, J. P., Ritter, Sullivan, Santucci and McGinity, JJ., concur.