
    The People of the State of New York, Respondent, v James Moss, Appellant.
   Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: The court’s failure to give a circumstantial evidence charge requires that the judgment be modified by reversing defendant’s conviction of first degree rape, vacating the sentence imposed thereon and granting a new trial on that count of the indictment (see, People v Cawthon, 163 AD2d 833; People v Ball, 162 AD2d 989 [each involving the appeal of a codefendant]). (Appeal from judgment of Supreme Court, Erie County, Kasler, J.—robbery, first degree.) Present—Callahan, J. P., Doerr, Denman, Green and Balio, JJ.  