
    The People of the State of New York, Respondent, v Dwight Jones, Appellant.
   Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Thomas, J.), imposed May 4, 1989, upon his conviction of attempted robbery in the third degree, upon his plea of guilty, the sentence being an indeterminate term of ÍVi to 3 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 since the defendant is incarcerated (see, People v West, 124 Misc 2d 622; see also, People v Velez, 150 AD2d 514; People v Williams, 131 AD2d 525; People v Peralta, 127 AD2d 803). 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 Lewis, 134 AD2d 286; People v Williams, supra). The defendant’s claims that imposition of the surcharge violated his constitutional rights to equal protection and due process of law are 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, Kunzeman, Harwood and O’Brien, JJ., concur.  