People v. Angelista , 176 A.D.2d 238 ( 1991 )

Appeal by the defendant, as limited by her motion, from a sentence of the Supreme Court, Queens County (Rotker, J.), imposed October 12, 1990, upon her conviction of criminal possession of a controlled substance in the second degree, upon her plea of guilty, the sentence being an indeterminate term of three years to life imprisonment and a $100 felony surcharge.

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 AD2d 724; People v Velez, 150 AD2d 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 AD2d 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 [2]; People v Ruz, 70 NY2d 942; People v Cobb, 153 AD2d 642). Mangano, P. J., Thompson, Sullivan, Harwood and Miller, JJ., concur.