
    The People of the State of New York, Respondent, v Nathaniel Ball, Appellant.
    [648 NYS2d 65]
   Judgment unanimously reversed on the law and indictment dismissed. Memorandum: Defendant was charged as a principal to rape in the first degree in counts one and two of the indictment and with sodomy in the first degree in counts three and four of the indictment. Defendant was charged as an accessory with rape in the first degree in counts five and six of the indictment and with sodomy in the first degree in counts seven and eight of the indictment. All eight counts charged defendant with engaging in sexual intercourse or in deviate sexual intercourse with the complainant by forcible compulsion either as a principal or an accessory in Erie County on April 16, 1993. Neither the bill of particulars nor the indictment indicates the specific acts that form the basis of those charges. After a bench trial, County Court found defendant guilty of counts two, three, five and eight and not guilty of the remaining four counts. The court rendered its verdict without relating the conduct of defendant to the specific counts in the indictment of which he was found guilty.

The proof at trial establishes that defendant and codefendant engaged in numerous acts of sexual intercourse and oral sodomy with the complainant. Since the counts of the indictment of which defendant was found guilty were never linked sequentially or otherwise to the proof, meaningful appellate review of the legal or factual sufficiency of the evidence is impossible without implicating the prohibition against double jeopardy (see, People v Garcia, 186 AD2d 221, 222, lv denied 81 NY2d 839; People v Smith, 180 AD2d 835, 836, lv denied 79 NY2d 1007; People v Foreman, 168 AD2d 928, 929, lv denied 77 NY2d 994; People v McNab, 167 AD2d 858). We reach this issue despite the fact that it is unpreserved (see, People v Rubin, 101 AD2d 71, 77).

In light of our determination, it is unnecessary to reach defendant’s remaining contentions. (Appeal from Judgment of Erie County Court, Fricano, J.—Rape, 1st Degree.) Present— Pine, J. P., Fallon, Wesley, Balio and Boehm, JJ.  