Judgment, Supreme Court, Bronx County, rendered June 10, 1977, convicting defendant of criminal sale of a controlled substance in the second degree and sentencing him to a term of imprisonment, reversed, on the law, and the case remanded for a new trial. Defendant Darrisaw is charged, in a three-count indictment, with criminal sale of a controlled substance in the second degree and criminal possession of a controlled substance in the third and fifth degrees. At trial, it was established that on September 17, 1976, at 139th Street and Cypress Avenue, he was accosted by one Soto, a registered police informant, who was accompanied by Machado, an undercover narcotics police officer. The three engaged in a brief conversation with respect to the purchase of narcotics, following which all three entered Machado’s unmarked car and proceeded to 140th Street and St. Ann’s Avenue. There, Darrisaw requested, and, through Soto, obtained funds from Machado. All three then exited from the vehicle. Darrisaw walked over to one Pasquale, and, after a brief conversation, made a payment to him. Pasquale directed Darrisaw to another man standing about 10 feet away who delivered two envelopes to him. Darrisaw turned over the envelopes to Machado and the three, Darrisaw, Soto and Machado, re-entered Machado’s automobile and proceeded, at Darrisaw’s direction, to 139th Street and Cypress Avenue. Darrisaw removed two bills from his pocket and folded them into pouches. He took one of the envelopes from Machado and poured a small amount of the contents of the envelope into each pouch. Thereupon, he returned the envelope to Machado. One pouch he gave to Soto and one he retained. He then left the car and Machado and Soto proceeded onward. So far as is disclosed by the record, neither Soto nor Machado had ever done business with Darrisaw prior to this incident. After the prosecution had rested, the court indicated to both counsel that he considered both possession counts to be inclusory concurrent counts (CPL 300.30, subd 4; People v Grier, 37 NY2d 847; People v Lee, 39 NY2d 388; People v Anderson, 60 AD2d 530; People v Blake, 58 AD2d 757); and that he intended to submit only the criminal sale count to the jury. Both the *823prosecution and the defense voiced their objections to this procedure. Defense counsel then requested a ruling on his Sandoval motion (People v Sandoval, 34 NY2d 371). The confused colloquy which ensued led to a discussion of the agency defense, at which time defense counsel requested an agency charge. The court noted that if such a charge were to be given, the People would be entitled to present evidence of Darrisaw’s prior narcotics background even if defendant did not take the witness stand. The claim by defendant that the court conditioned the agency charge on defendant’s taking the stand, is not borne out by the record. However, it is clear that defendant never withdrew his- request for the charge, nor having made it, did he waive the request by failing to except at the close of the charge. When the jury reconvened, the defendant rested. After summation, the court charged only the criminal sale count, omitting any reference to the agency defense. We hold that in the circumstances of this case, the failure to charge agency constituted reversible error (People v Roche, 45 NY2d 78; People v Argibay, 45 NY2d 45; People v Lam Lek Chong, 45 NY2d 64). As the Court of Appeals noted in Argibay (supra, p 55): so long as "there is at least some evidence, however slight, to support the inference that the supposed agent was acting, in effect, as an extension of the buyer” determination of the existence of an agency relationship should be submitted to the jury with appropriate instructions (see, also, People v Roche, supra, p 86). In the absence of testimony by the defendant that one of his purposes in assisting in the sale was the hope of future collateral advantage (People v Lam Lek Chong, 45 NY2d 64, supra), or admissions to a police officer that the profit motive was his underlying purpose in selling narcotics (People v Argibay, 45 NY2d 45, supra), we are unable to say as a matter of law that Darrisaw was not "an extension of the buyer”. Of course, the trial court correctly pointed out to defense counsel that the agency defense opened the door to evidence that "the defendant has had other drug dealings with this or other buyers or sellers” (People v Lam Lek Chong, 45 NY2d 64, 75, supra; see, also, People v Calvano, 30 NY2d 199). Whether, in the event the defendant fails to take the stand, the method of demonstration by independent proof is proper is a question best reserved to another day when the issue is concretely formulated in a record disclosing the technique employed in the presentation of such evidence. (Cf. People v Mann, 31 NY2d 253, 256.) Since a new trial will be required, it becomes necessary to determine whether the defendant may be retried on the two possessory counts not submitted to the jury by the trial court. The failure of the trial court to present these counts in the face of the request by both counsel was error (CPL 300.50, subds 2, 3). The rule is clear that where a defendant is charged with a crime and is convicted of a lesser included offense which is subsequently reversed, the retrial is, of necessity, limited to the highest charge upon which defendant was convicted. The conviction on the lesser charge constitutes an acquittal of the higher charge (CPL 300.40, subd 3, par [b]), and, thus, a retrial on the higher charge constitutes double jeopardy (Price v Georgia, 398 US 323). Accordingly, retrial thereof will not be permitted (People v Graham, 36 NY2d 633; People v Skinner, 57 AD2d 785). However, the converse does not follow (People v Jackson, 20 NY2d 440, cert den 391 US 928). The possessory counts were not submitted because they were inclusory concurrent counts. As such it was impossible to commit the crime of criminal sale of a controlled substance in the second degree without at the same time committing the two possessory counts charged. Accordingly, the defense of double jeopardy is not applicable. In holding as we do we are not unmindful that CPL 300.40 (subd 7) so far as here applicable, provides *824that "Every count not submitted to the jury is deemed to have been dismissed by the court”. We hold only that a dismissal on the facts before us does not preclude a retrial of the lesser counts on the ground of double jeopardy. Concur—Sandler, J. P., Sullivan and Bloom, JJ.