This is an application, pursuant to article 78 of the CPLR, in the nature of mandamus, for an order directing the return to petitioner of certain moneys deposited by him and which are in the Department of Probation.
Petitioner originally pleaded guilty to grand larceny in the second degree and, with the approval of the court, instituted a restitution program, pursuant to which he made deposits with the' Probation Department totaling $5,936. This was done because the court had under consideration the possibility of a sentence of probation to be imposed on the petitioner.
However, the court eventually decided that it could not give petitioner a sentence of probation and it allowed him to withdraw his plea of guilty and reinstituted the plea of not guilty and directed as follows: “Probation escrow money to be
returned to defendant This, obviously, was in accordance with the long-established practice that, when a court cannot comply with terms which had previously been negotiated *92between it and a defendant, the defendant is entitled to be restored to his status quo before the guilty plea was accepted. Our dissenting colleagué concedes “ undoubtedly when a plea is permitted to be withdrawn all terms and conditions of the plea are included, and the situation is as if the plea had never been entered”.
Following the withdrawal of the guilty plea, petitioner appeared before another Justice of the court and pleaded guilty to grand larceny in the second degree. He was sentenced to one year in prison.
The sentencing Judge refused to direct the return of the money which was in the possession of the Probation Department, despite the prior order of another Justice of the court. As a result, this proceeding has been instituted.
Restitution, as distinguished from a fine, can only be imposed, upon a conviction, as a condition of probation or of conditional discharge. Paragraph (f) of subdivision 2 of section 65.10 of the Penal Law reads in part:
' “When imposing a sentence of probation or of conditional discharge, the court may, as a condition of the sentence, require that the defendant:
“ (f) Make restitution of the fruits of his offense or make reparation, in an amount he can afford to pay, for the loss or damage caused thereby.” Respondents have cited no authority which challenges the rule that, in view of the last-cited section, restitution can be imposed only pursuant to probation or conditional discharge.
Restitution is not a means to recover damages in a criminal action. It is a procedure whereby, in á proper case, the court has discretion to place a defendant on probation and at the same time not allow him to profit by his criminal act. In the absence óf a statutory provision, criminal courts have no power to direct reparation or restitution. (People v. Grago, 24 Misc 2d 739.)
We have noted the cogent reasoning of our dissenting colleague in support of his conclusion that the money should not be returned to the petitioner on principles of equity. It would be a forceful argument if it were presented to the. Legislature to the end that it might consider the advisability of a change in the law. But, as the law is now written, we can only take such action as is circumscribed therein.
We have considered the argument of the respondents to the effect that the Statute of Limitations applies to this proceeding because the petitioner failed to bring it within four months, as required by CPLR 217. We find this to be without merit *93because the clear legal right to relief, upon which this proceeding is founded, did not accrue until July 9, 1973, when the petitioner was finally sentenced and given a prison term instead of probation or conditional discharge.
The petition herein for an order directing the return to petitioner of the money now on deposit in the Department of Probation should be granted, without costs.