
    The People of the State of New York, Respondent, v James DiMartino, Appellant.
   The defendant’s claim that the imposition of the statutory minimum term of imprisonment was unconstitutional as applied to him is without merit in light of the nature of the offense and the defendant’s extensive criminal history.

Further, the Supreme Court did not improvidently exercise its discretion in refusing to waive the mandatory felony surcharge at the time of sentencing (see, People v Cobb, 153 AD2d 642; People v Fulton, 138 AD2d 514). If, upon his release from prison, the surcharge is not fully paid, the defendant may then move for resentence and a waiver thereof (see, CPL 420.10 [5]; 420.35; People v Fulton, supra). Thompson, J. P., Lawrence, Sullivan, Harwood and Balletta, JJ., concur.  