The People of the State of New York, Respondent, v. Quinton Skipwith, Appellant, 22 A.D.2d 960

Appeal by defendant: (1) from a judgment of the County Court, Orange County, rendered April 24, 1964 on his plea of guilty, convicting him of a violation of

section 974 of the Penal Law (policy) and imposing sentence; (2) from an order of said court, dated April 24,1964, which directed that a certain sum of money taken by the police upon a search of the defendant’s residence, pursuant to a search warrant, be delivered to the County Treasurer for deposit in the General Fund of Orange County; and (3) from an order of said court, dated January 30, 1963, which denied defendant’s motion for the return of the said money. Judgment affirmed. Appeal from order of April 24, 1964 dismissed. That order was made and entered ex parte; no appeal lies from such an order.

Defendant’s remedy is to institute an appropriate proceeding for vacatur of the order, if defendant be so advised. Order of January 30, 1963 modified on the law as follows: (1) by striking out the provision that the denial is without prejudice to an application under

section 813-e of the Code of Criminal Procedure; and (2) by substituting therefor a provision that the denial is without prejudice to any appropriate plenary action or proceeding which defendant may be advised to institute for the purpose of obtaining restitution of the said money. As so modified, the said order is affirmed. Since no criminal prosecution is now pending, an application under

section 813-e of the Code of Criminal Procedure would not be an appropriate remedy. (For a prior appeal from order of January 30, 1963, see People v. Skipwith, 20 A D 2d 662.) Kleinfeld, Acting P. J., Christ, Hill, Rabin and Hopkins, JJ., concur.