People v. Carlton

133 A.D.2d 776, 520 N.Y.S.2d 61, 1987 N.Y. App. Div. LEXIS 51813

Opinion

Appeal by the defendant from a judgment of the County Court, Suffolk County (Tisch, J.), rendered October 14, 1986, convicting him of burglary in the second degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

Neither , the defendant nor his attorney made any objection when the sentencing court imposed the mandatory surcharge of $100 (see, Penal Law § 60.35 [1] [a]). Further, the record contains no indication that the defendant either applied for resentencing pursuant to CPL 420.10 (5) or otherwise sought a waiver of the surcharge on the basis that payment of it would "work an unreasonable hardship” (CPL 420.35). The defendant’s argument on appeal that the sentencing court abused its discretion in failing to waive the surcharge is therefore not preserved for review (see, People v Baker, 130 AD2d 582). The defendant’s arguments concerning the constitutionality of the mandatory surcharge are meritless (see, People v Barnes, 62 NY2d 702; People v Brown, 105 AD2d 509). In any event, the defendant’s application for a waiver of the surcharge is premature (see, People v Peralta, 127 AD2d 803, lv denied 69 NY2d 953). Mollen, P. J., Bracken, Rubin, Hooper and Spatt, JJ., concur.