Defendant was arrested after firing five shots at the fleeing complainant who had just hit the codefendant in the face with a tree limb.
Defendant claims that he acted in self-defense and that the prosecution failed to disprove such at trial. Defendant’s contention is without merit. The four witnesses to this incident all agreed that defendant fired the shots across East Broadway in lower Manhattan, after a fleeing complainant. Clearly, there was no current threat to the defendant and the defense of justification is unavailing. (Penal Law § 35.15 [2] [a].)
The defendant admits that he did use the weapon but urges that he only fired three times at the ground to ward off the attack by a group of three men, one of whom was the complainant. Defendant fails to show any imminent threat to his person. Furthermore, the testimony of the eyewitnesses provides such substantial evidence against this theory, it must be rejected.
Lastly, defendant urges that his sentence was excessive. Notwithstanding his employment record, the fact that defendant had a prior felony conviction and showed no hesitancy in firing at this fleeing adversary even though innocent bystanders were in the direct line of fire clearly supports the imposition of the above-mentioned sentence. Concur—Kupferman, J. P., Carro, Milonas, Ellerin and Rubin, JJ.