Sullivan and Smith, JJ., dissent in a memorandum by Sullivan, J., as follows: The People appeal from a sentence of four concurrent terms of three to nine years’ imprisonment imposed in connection with defendant’s conviction, upon his plea of guilty, of four counts of robbery in the first degree. Since, in my opinion, the sentence was invalid as a matter of law, I would reverse and remand for resentencing.
This conviction stemmed from charges brought in connection with four robberies prosecuted under four separate indictments. One of the robberies was committed at knifepoint. In the other three, including the last, defendant was accused of displaying what appeared to be a gun (Penal Law § 160.15 [4]). The last robbery was committed after defendant had been arraigned and released on bail on the other three indictments and while those charges were still pending.
Insofar as relevant, Penal Law § 70.25 (2-b) provides that ”[w]hen a person is convicted of a violent felony offense committed after arraignment and while released on recognizance or bail, but committed prior to the imposition of sentence on a pending felony charge, and if an indeterminate sentence of imprisonment is imposed in each case, such sentences shall run consecutively. Provided, however, that the court may, in the interest of justice, order a sentence to run concurrently * * * if it finds * * * mitigating circumstances that bear directly upon the manner in which the crime was committed”.
The majority concludes that defendant’s youth, lack of a serious criminal record and the absence of injury to the complainant were sufficient mitigating circumstances under Penal Law § 70.25 (2-b) to justify the imposition of concurrent rather than consecutive sentences.* While these circumstances may justify a sentence reduction, as a matter of discretion, on appeal (see, e.g., People v Maryea, 157 AD2d 605, lv denied 76 NY2d 792; People v Spencer, 144 AD2d 310, lv denied 73 NY2d 983; People v Aguila, 121 AD2d 888, lv denied 68 NY2d 809; People v Lewis, 66 AD2d 702), they do not justify the imposition of concurrent rather than consecutive sentences under Penal Law § 70.25 (2-b).
*462The absence of injury has no relevance to defendant’s first degree robbery conviction under the fourth indictment and thus does not "bear directly upon the manner in which the crime was committed” (Penal Law § 70.25 [2-b]). The infliction of injury is not an element of the crime of robbery in the first degree committed pursuant to Penal Law § 160.15 (4) (displays what appears to be a pistol). Rather, in the context of this case, it merely serves to explain the absence of aggravating circumstances, the presence of which would warrant additional charges. But the absence of an aggravating circumstance hardly constitutes a mitigating factor. In fact, defendant committed the fourth robbery in textbook fashion: he exploited a hapless victim with the threat of a gun and forcibly took his property. The statute requires no more nor no less.
Moreover, to regard the absence of injury as a mitigating circumstance in every first degree robbery conviction premised upon section 160.15’s subdivisions (2) (armed with a deadly weapon), (3) (uses or threatens the immediate use of a dangerous instrument) or (4) (displays what appears to be a pistol), in which there is no assault, would allow for the imposition of concurrent instead of consecutive sentences and thus permit the exception to swallow the rule. This could not have been the result that the Legislature intended. Furthermore, while defendant did not injure the complainant in the fourth robbery, there is nothing in the record to suggest that he deliberately exercised restraint in this regard. In fact, according to the presentence report, defendant, indicating that he had a gun, told the victim, "[Y]ou owe me your life”, thus conveying the threat that he was prepared to kill.
Nor do the other factors relied upon by the majority— defendant’s youth and lack of a serious criminal record — "bear directly upon the manner in which the crime was committed”. While the majority relies upon People v Maryea (supra), in support of its conclusion to the contrary, that case, as noted, involved a discretionary sentence reduction; there was no question in Maryea of mitigating circumstances under Penal Law § 70.25 (2-b).
Finally, I disagree with the majority’s conclusion that the prosecutor "apparently acquiesced” in the court’s evaluation of mitigating circumstances. While at the plea proceeding the prosecutor took no exception to the Judge’s statement that defendant would be sentenced to concurrent terms of imprisonment, the prosecutor argued at sentence that because defendant "was out on the first three cases when he committed the *4634th case”, "the sentence must by law be consecutive to the others”. This was sufficient to preserve a question of law for this court’s review. (See, CPL 470.05 [2].)
The majority also refers to the court’s reliance on defendant’s addiction. That factor, while mentioned at sentence by defense counsel, was not among those on which the court based its conclusion of mitigating circumstances.