People v. Santos , 176 A.D.2d 245 ( 1991 )

— Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Thomas, J.), imposed November 9, 1989, upon his conviction of criminal sale of a controlled substance in the fifth degree, upon his plea of guilty, the sentence being an indeterminate term of 2 to 4 years 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 in view of the defendant’s incarceration (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 his imprisonment, the defendant is unable to pay the mandatory surcharge, he 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 his 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.