People v. Jackson

Judgment, Supreme Court, New York County (Jeffrey Atlas, J.), rendered June 6, 1995, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 6 to 12 years, unanimously affirmed.

The specific claim raised on appeal with respect to the Sandoval ruling is unpreserved and we decline to reach it.

Defendant’s challenge to the court’s predeliberation jury instruction concerning the general nature of the deliberative process, which defendant characterizes as an “Allen charge,” is unpreserved and we decline to review it in the interest of justice. Were we to review it, we would find that the instruction, while somewhat deficient, does not warrant reversal (People v Alvarez, 86 NY2d 761, 763).

Defendant’s claim that the mandatory surcharge should be waived because of his alleged indigency is premature (People v Ramirez, 208 AD2d 381, lv denied 84 NY2d 1037). The proper procedure is to move for resentencing pursuant to CPL 420.10 (5) (see, People v Velasquez, 198 AD2d 25, lv denied 82 NY2d 932). Concur—Murphy, P. J., Sullivan, Ellerin and Williams, JJ.