People v. Moss

166 A.D.2d 921, 561 N.Y.S.2d 671, 1990 N.Y. App. Div. LEXIS 12243

Opinion

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.