Appeal by defendant from a judgment of the District Court of Nassau County, First District (Scott Fairgrieve, J.), rendered March 14, 2005. The judgment convicted defendant, upon a jury verdict, of criminal sale of marihuana in the fifth degree.

Judgment of conviction affirmed.

Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish defendant's guilt of criminal sale of marihuana in the fifth degree (Penal Law § 221.40) beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilty was not against the weight of the evidence (see CPL 470.15 [5]).

In addition, the court properly precluded defendant from commenting during summation on the fact that the People failed to call the drug buyer as a witness. "[A]lthough a summation comment on [a] witness's absence does not require the same foundation as a missing witness charge, there was no basis for such a comment here since the witness was clearly unavailable, . . . and there was no showing that the witness should naturally be expected to testify favorably to the People" (People v Ramos, 305 AD2d 115, 116 [2003], lv denied 100 NY2d 586 [2003]).

McCabe, J.P., Tanenbaum and Lippman, JJ., concur.