Opinion
October 6, 1994
Appeal from the Supreme Court, Bronx County (Ivan Warner, J.).
We adhere to our holdings that an application for waiver of the mandatory surcharge on the ground of unreasonable hardship (CPL 420.35) is premature until the end of the defendant's term of imprisonment (e.g., People v. Velasquez, 198 A.D.2d 25, lv denied 82 N.Y.2d 932; accord, e.g., People v. Whitmore, 177 A.D.2d 525 [2d Dept], lv denied 80 N.Y.2d 840). In the event defendant is unable to pay the surcharge at that time (see, Correction Law § 187; Penal Law § 60.35), he may then move for the waiver (People v. Velasquez, supra). Such procedure does not violate defendant's rights to due process and equal protection since he is not being imprisoned, or kept from release, because of any inability to pay the surcharge.
Concur — Sullivan, J.P., Carro, Rosenberger, Wallach and Rubin, JJ.