Judgment, Supreme Court, Bronx County, rendered on November 6, 1974, convicting defendant, after trial, of the crime of criminal sale of a controlled substance in the first degree, unanimously reversed, on the law, and matter remanded for a new trial. The trial court erroneously charged as follows: "You must also determine whether the defendant gained any financial or personal gain from the transaction in question. If he did, he cannot be considered an agent of the buyer." Defendant properly excepted to this charge. On this record the jury could have found that defendant acted solely as the buyer's agent, even though he received $200 from the undercover police buyer for setting up a drug sale. The court, by its charge "removed this option from the jury" (People v Bostick, 51 A.D.2d 749). The request of defense counsel that the court instruct the jury that profit or financial gain was only one factor to be considered in determining whether appellant was an agent of the undercover policeman, was entirely proper and should have been granted.
Concur — Murphy, J.P., Birns, Capozzoli, Lane and Nunez, JJ.