PEOPLE v. CAWTHON

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 and granting a new trial on that count of the indictment (see, People v. Ball, 162 A.D.2d 989 [involving the appeal of the codefendant]).