Ordered that the amended judgment is affirmed.
The defendant was originally sentenced to five years probation with a determinate term of six months incarceration as a condition, and running concurrently. In addition, $6,215 in restitution and a $310.75 felony surcharge were imposed. The defendant violated the terms of his probation, and the court vacated the sentence and imposed an amended sentence of an indeterminate term of two and one-third to seven years imprisonment, and a $310.75 felony surcharge.
The defendant filed a notice of appeal only from the amended judgment, but now argues that the imposition of restitution and a mandatory surcharge were improper. Because the restitution portion of the sentence was vacated, the defendant's contention regarding it is academic. With respect to the imposition of the mandatory surcharge, to the extent that the defendant seeks a waiver of that charge, his application is premature, as he is still incarcerated (see, People v Angelista, 176 A.D.2d 238). 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 Crim. Proc. [5]). Mangano, P.J., Sullivan, Rosenblatt, Miller and Ritter, JJ., concur.