“Where a testifying officer claims to have seen that which common sense dictates could not have been seen, courts have repeatedly deemed this testimony patently tailored to meet constitutional objections” (People v Lebron, 184 AD2d 784, 787 [1992]; see People v Rutledge, 21 AD3d 1125, 1126 [2005]; People v Lewis, 195 AD2d 523, 524 [1993]). Here, contrary to the defendant’s contention, the arresting officer’s testimony at the pretrial hearing that he observed, in plain view and without leaning into the car in question, the butt of a handgun protruding from beneath the driver’s seat while he was squatting in the space created by the open front passenger-side door, was not incredible as a matter of law (see People v James, 19 AD3d 617, 618 [2005]; People v Burgess, 168 AD2d 685, 686 [1990]; People v Kalish, 166 AD2d 610, 611 [1990]; People v Burke, 146 AD2d 706, 706-707 [1989]). Moreover, the hearing testimony does not support the defendant’s contention that the officer’s testimony was a fabrication tailored to nullify constitutional objections
However, the cumulative effect of the prosecutor’s improper comments during summation requires a new trial. While the defendant’s claim regarding the comments made by the prosecutor during summation is partially unpreserved for appellate review, we nevertheless review it in the exercise of our interest of justice jurisdiction (see CPL 470.15 [6] [a]; People v Badine, 301 AD2d 178, 180 [2002]; Matter of Stagnar v Stagnar, 98 AD2d 983, 984 [1983]).
“[I]n summing up to the jury, [the prosecutor] must stay within ‘the four corners of the evidence’ and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the accused” (People v Bartolomeo, 126 AD2d 375, 390 [1987], quoting People v Ashwal, 39 NY2d 105, 109-110 [1976]). At trial, the arresting officer testified that he observed the defendant “sweating very profusely” and his heart beating rapidly during the traffic stop. The defendant presented medical evidence to establish that his perspiration and rapid heart rate were the result of hypertension. During summation, the prosecutor improperly commented on the defendant’s medical evidence by repeatedly referring to it as a “distraction,” a “smokescreen,” and “smoke and mirrors,” while at the same time arguing in support of the People’s case that the defendant’s physical condition was evidence of consciousness of guilt (see People v Pagan, 2 AD3d 879, 880 [2003]; People v Ortiz, 125 AD2d 502, 503 [1986]; People v Torres, 111 AD2d 885, 886-887 [1985]; cf. People v Galloway, 54 NY2d 396, 399 [1981]; People v Flores, 191 AD2d 306, 307 [1993]). The prosecutor also impermissibly shifted the burden of proof to the defendant by informing the jurors that if they did not find the defendant’s testimony “reasonable,” they could not “form the basis of reasonable doubt” (see People v Pagan, 2 AD3d at 880; People v Bull, 218 AD2d 663, 665 [1995]; People v Bonaparte, 98 AD2d 778 [1983]). Finally, the evidence presented at trial established that the arresting officer recovered the handgun from beneath the “front seat” of the car. As there was no evidence to establish that the handgun was found beneath the front passenger seat as opposed to the front driver’s seat, the prosecutor misstated the evidence during summation when he told the jury on 14 occasions that the handgun had been found beneath the
The cumulative effect of these improper comments deprived the defendant of a fair trial (see People v Calabria, 94 NY2d 519, 522 [2000]; People v Brown, 26 AD3d 392, 393 [2006]; People v Pagan, 2 AD3d at 880; People v Cotton, 242 AD2d at 638-639).
In light of our determination, the defendant’s contention that it was improper for the prosecutor to argue that the defendant had the benefit of hearing the People’s proof before testifying has been rendered academic. Rivera, J.R, Dillon, Hall and Roman, JJ., concur.