Opinion
February 8, 1988
Appeal from the County Court, Suffolk County (Weissman, J.).
Ordered that the sentence is affirmed.
The sentencing court properly exercised its discretion in imposing consecutive terms of imprisonment for the two counts of burglary in the third degree. Consecutive sentences may be imposed for crimes committed by disparate and separate acts (see, Penal Law § 70.25; People v Underwood, 52 N.Y.2d 882; People v Sanchez, 131 A.D.2d 606, 609, lv denied 70 N.Y.2d 717). Although the burglaries charged may be said to have occurred in the course of a single extended transaction, they involved the illegal entry into separate business establishments and clearly resulted from separate acts on the part of the defendant (see, People v Brathwaite, 63 N.Y.2d 839, 843; People v Sanchez, supra; People v Blowe, 130 A.D.2d 668, 671). The sentence being lawful and being the term promised as part of a negotiated plea bargain, it should be sustained (see, People v Perkins, 130 A.D.2d 521, lv denied 70 N.Y.2d 716; People v Kazepis, 101 A.D.2d 816).
The defendant's remaining contentions are addressed to the court's imposition of the mandatory surcharge as to each count. Penal Law § 60.35 (2) forbids the imposition of multiple surcharges upon the defendant's conviction of multiple crimes arising from the commission of a single act. However, it follows that where, as here, the imposition of consecutive sentences for crimes committed by separate acts is proper, the imposition of a surcharge as to each crime arising from a disparate and separate act is also lawful. We therefore reject the defendant's contention that the imposition of multiple surcharges at bar was illegal. The defendant's further contention that the surcharges should be vacated because of his indigency has not been preserved for appellate review as a matter of law as neither the defendant nor his counsel requested a waiver of the surcharge prior to sentencing (see, CPL 470.05; People v Naumann, 131 A.D.2d 705; People v Baker, 130 A.D.2d 582, lv denied 70 N.Y.2d 709). In any event, any application for a waiver of the mandatory surcharge would be premature in view of the defendant's incarceration (see, People v West, 124 Misc.2d 622; People v Williams, 131 A.D.2d 525, lv denied 70 N.Y.2d 718; People v Peralta, 127 A.D.2d 803, 804, lv denied 69 N.Y.2d 953). Thompson, J.P., Bracken, Brown, Weinstein and Spatt, JJ., concur.