The issue raised by this petition admits of resolution by principles of equity so rudimentary that the proverbial man in the street would experience no difficulty in arriving at the propér solution. We have become so embroiled in considerations of what is fair in plea bargaining that the forest has been obliterated by the immediate prospect of the trees.
The petitioner was indicted for larceny and forgery on indictments charging him with thefts totaling $122,000. Upon representations that he would make restitution the court (Dollikger, J.) indicated that he would give a sentence of probation. Petitioner then pleaded guilty and arrangements were made for him to make periodic payments to respondent Beeves, Chief Probation Officer of the Department of Probation. As the payments were restitution, Mr. Beeves held them for the benefit of the victims of petitioner’s larcenies. When the petitioner appeared for sentence, Judge Dolliuger concluded that a sentence of probation would not be proper. At that time some $6,000 had been deposited with Mr. Beeves. In view of his conclusion that he could not with propriety sentence petitioner to probation, Mr. Justice Dollihger quite properly allowed petitioner to withdraw his plea. He also made a notation on the papers that the $6,000 should be returned to petitioner. Nothing was done to implement this direction.
Shortly thereafter petitioner appeared before Mr. Justice Boberts for trial on the indictment, pleaded guilty to grand larceny and to forgery in the second degree, and received two concurrent sentences of one year. He thereupon asked Mr. Justice Boberts to order the return of the funds deposited. He refused, and this petition for that relief followed.
Petitioner claims that he made the payments in the expectation that he would receive a sentence of probation. This is undoubtedly true, but quite immaterial. Petitioner had not been sentenced and no terms of payment as a condition for probation had been arrived at pursuant to section 65.10 of the Penal Law. Payments made prior to sentence, though made in the expectation of a sentence of probation, are not made pursuant *94to such a sentence. Even though the court may have encouraged such payments (which, though it does not specifically appear, might reasonably be assumed), the situation is unchanged. Petitioner in making the payments was acting voluntarily to discharge a legal and moral obligation.
Once the payments were made, the funds in the possession of the respondent equitably belonged to the persons who were victimized by the petitioner. Had the payments been made directly to them it is beyond dispute that petitioner could not recover them because he did not receive the sentence he had expected when he made the payments. Respondent Reeves did not become an eserowee but a trustee for these persons. Neither of the two justices involved had any power to nullify that by ordering restitution to petitioner.
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. Likewise, if a plea is accepted pursuant to a representation as to what the sentence will be, if the court does not see fit to impose that sentence the plea should be allowed to be withdrawn. But, as indicated, these principles affect neither the equities nor the legalities of the situation.
The petition should be dismissed.
Markewich, J. P., and Kupperman, J., concur with Capozzoli, J.; Steuer, J., dissents in an opinion.
Petition granted, without costs and without disbursements, and the Department of Probation directed to return to petitioner the moneys deposited by him with said department.