Opinion
Argued January 5, 1988
Decided January 14, 1988
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, David Stadtmauer, J.
Elizabeth J. Vila, Philip L. Weinstein and Helen A. Marino for appellant.
Paul T. Gentile, District Attorney (David K. Bertan and Billie Manning of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Defendant acknowledges that the sentencing court had statutory power to impose the surcharge mandated by Penal Law § 60.35 (see by contrast, People v David, 65 N.Y.2d 809, 810; People v Fuller, 57 N.Y.2d 152, 156). However, he now maintains for the first time that the surcharge was unconstitutional as applied to him, in that it violated the ex post facto prohibition contained in the Federal Constitution (US Const, art I, § 10 [cl 1]). By not bringing this issue to the attention of the court at the time of sentence, defendant failed to preserve it for our review (People v Ingram, 67 N.Y.2d 897; People v Lemon, 62 N.Y.2d 745).
Defendant's additional constitutional challenges to the statute are similarly unpreserved (see also, People v Barnes, 62 N.Y.2d 702).
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
Order affirmed in a memorandum.