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 AD2d 989 [involving the appeal of the codefendant]). (Appeal from judgment of Supreme Court, Erie County, Kasler, J.—robbery, first degree.) Present—Boomer, J. P., Green, Pine, Davis and Lowery, JJ.