STATE OF NEW JERSEY v. WUKEEM W. LEWIS
Annotate this CaseRECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1711-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WUKEEM W. LEWIS, a/k/a
WALLACE W. LEWIS, and
WAKEEM LEWIS,
Defendant-Appellant.
_____________________________________
Argued May 30, 2018 – Submitted June 26, 2018
Before Judges Hoffman, Gilson, and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Criminal Part, Union County,
Indictment No. 14-04-0259.
Joshua D. Sanders argued the cause for
appellant (Joseph E. Krakora, Public Defender,
attorney; Joshua D. Sanders, Assistant Deputy
Public Defender, of counsel and on the brief).
Sarah D. Brigham argued the cause for
respondent (Gurbir S. Grewal, Attorney
General, attorney; Sarah D. Brigham, Deputy
Attorney General, of counsel and on the
brief).
PER CURIAM
A jury convicted defendant Wukeem W. Lewis of first-degree
kidnapping,
N.J.S.A. 2C:13-1(b)(1) and (2); third-degree
aggravated criminal sexual contact,
N.J.S.A. 2C:14-3(a) and 2C:14-
2(a)(3); second-degree attempted aggravated sexual assault,
N.J.S.A. 2C:5-1 and 2C:14-2(a)(3); and second-degree attempted
sexual assault,
N.J.S.A. 2C:5-1 and 2C:14-2(c)(1). On the
conviction for kidnapping, defendant was sentenced to twenty-eight
years in prison subject to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. On his conviction for attempted aggravated
sexual assault, defendant was sentenced to a consecutive nine
years in prison subject to NERA, parole supervision for life,
Megan's Law registration, and a restraining order preventing him
from having contact with the victim. The two other convictions
were merged with the conviction for attempted aggravated sexual
assault. Consequently, defendant's aggregate sentence was
thirty-seven years in prison, with eighty-five percent of that
time ineligible for parole.
Defendant appeals from his convictions and sentences. He
challenges his convictions by arguing that the jury instructions
on flight and out-of-court identification were flawed. He also
contends that his sentences were excessive and he should not have
received consecutive sentences. We affirm because we discern no
2 A-1711-16T1
error in the jury instructions, and the trial court did not abuse
its discretion in sentencing defendant.
I.
Defendant's convictions arose out of an assault of a woman
as she was walking home during the morning of September 15, 2013.
The victim was walking from the train station towards her apartment
when she passed a man, later identified as defendant. Defendant
tried to get the victim's attention, but the victim kept walking.
When defendant followed her, the victim pulled out her cell phone
and told defendant that she was going to call the police.
Believing that defendant had turned in the other direction, the
victim continued walking. Shortly thereafter, however, defendant
grabbed her from behind and dragged her towards an abandoned
building. He threw the victim to the ground, attempted to remove
her clothing, and groped her.
The victim screamed and called for help. A woman who lived
in a neighboring building heard her screams and came out to
investigate. When the neighbor observed defendant on top of the
victim, she ran over and pulled defendant off. The neighbor
immediately recognized defendant because she was a prostitute and
defendant was one of her "regular" clients. The neighbor also had
used drugs with defendant. The neighbor pushed defendant away and
3 A-1711-16T1
told him to leave. Later she testified that defendant then walked
away "really fast."
Thereafter, the victim called 911 and the neighbor spoke with
the 911 operator. The neighbor explained that she had just stopped
a rape in progress and described the assailant as a black male,
wearing glasses, a black cap, a red jacket, blue jeans, and brown
boots. She also gave the 911 operator defendant's alias, "Wu,"
and explained that she knew him personally.
The police responded and, later, they interviewed the
neighbor and the victim. The neighbor explained that she knew
defendant because she was a prostitute and defendant was a frequent
customer. She also explained that she had used drugs with
defendant and had sold drugs to defendant. She then provided the
police with defendant's phone number.
Thereafter, the police arrested defendant. As part of the
investigation, the police showed both the victim and the neighbor
photo arrays. The neighbor identified defendant as the assailant
from the photo array. The victim was unable to identify defendant
from the photo array. At trial, however, the victim did identify
defendant as her assailant.
Before trial, defendant moved to introduce evidence that the
neighbor was a prostitute and that she had sold drugs to him. The
court granted that motion.
4 A-1711-16T1
At trial, the State presented testimony from the victim, the
neighbor, three police officers, and several other witnesses.
Defendant elected not to testify and did not call any witnesses.
Before closing arguments, the trial court conducted a jury
charge conference with counsel and defendant. The court and
counsel discussed a charge on flight and defense counsel asked the
court to include language informing the jury that defendant denied
that he was the assailant and, therefore, denied he was the
individual that fled. The court agreed to include that language
following the flight charge. The court also reviewed with counsel
the charge on out-of-court identifications.
Following the charge conference, the court instructed the
jury on the law, including a charge on flight and the out-of-court
identification of defendant. The instructions on flight and out-
of-court identification included the language requested by defense
counsel. In giving the out-of-court identification instruction,
the court did not include the "Disguises/Changed Appearance"
portion of the Model Jury Charge. Defense counsel made no
objection to that omission.
After being charged, and after considering the evidence, the
jury convicted defendant of all charges.
5 A-1711-16T1
II.
On appeal, defendant challenges his convictions and
sentences. Specifically, he makes three arguments, which he
articulates as follows:
POINT I – THE TRIAL COURT COMMITTED REVERSIBLE
ERROR BY FIRST INSTRUCTING THE JURY AS TO
FLIGHT BEING POSSIBLY INDICATIVE OF
CONSCIOUSNESS OF GUILT AND THEN COMPOUNDED
THAT INITIAL ERROR BY ISSUING AN
UNCONSTITUTIONAL INSTRUCTION ON FLIGHT AS
CONSCIOUSNESS OF GUILT.
POINT II – THE JURY INSTRUCTION ON
IDENTIFICATION, WHICH OMITTED THE ESTIMATOR
VARIABLE REGARDING "DISGUISES/CHANGED
APPEARANCE," FAILED TO ADEQUATELY EXPLAIN A
RELEVANT FACTOR FOR ASSESSING THE RELIABILITY
OF THE OUT-OF-COURT IDENTIFICATION.
POINT III – MR. LEWIS'S SENTENCE IS EXCESSIVE
AND MUST BE REDUCED.
We are not persuaded by any of these arguments and,
accordingly, we affirm both the convictions and the sentences. We
will first address the jury instructions and defendant's arguments
on flight and out-of-court identification. We will then discuss
the sentences.
A. The Jury Instructions
"An essential ingredient of a fair trial is that a jury
receive adequate and understandable instructions." State v.
McKinney,
223 N.J. 475, 495 (2015) (quoting State v. Afanador,
151 N.J. 41, 54 (1997)). Accordingly, the trial court must give "a
6 A-1711-16T1
comprehensive explanation of the questions that the jury must
determine, including the law of the case applicable to the facts
that the jury may find." Ibid. (quoting State v. Green,
86 N.J.
281, 287-88 (1981)).
We review the jury charge "as a whole" to determine whether
there was any error. State v. Torres,
183 N.J. 554, 564 (2005);
see also State v. Marshall,
123 N.J. 1, 145 (1991) ("[T]he
prejudicial effect of an omitted instruction must be evaluated 'in
light of the totality of the circumstances – including all the
instructions to the jury, [and] the arguments of counsel.'").
When counsel does not object to the jury charge at trial, we
apply a plain error standard of review. R. 2:10-2. Under that
standard, a defendant must demonstrate "legal impropriety in the
charge prejudicially affecting [his] substantial rights . . . and
[that] . . . the error possessed a clear capacity to bring about
an unjust result." State v. Young,
448 N.J. Super. 206, 224 (App.
Div. 2017). Moreover, when there was no objection to the charge,
we "presum[e] that the charge was not error and was unlikely to
prejudice the defendant's case[.]" Ibid. (quoting State v.
Singleton,
211 N.J. 157, 182 (2012)).
1. The Flight Charge
Defendant raises two issues concerning the jury charge on
flight. First, he argues that the evidence was insufficient to
7 A-1711-16T1
establish that he fled in an attempt to avoid apprehension, which
is required to infer a consciousness of guilt. Second, he argues
that the jury charge was unconstitutional because it failed to
articulate the State's burden of proof on the flight issue.
"Flight from the scene of a crime, depending on the
circumstances, may be evidential of consciousness of guilt,
provided the flight pertains to the crime charged." State v.
Randolph,
228 N.J. 566, 594 (2017) (citing State v. Mann,
132 N.J.
410, 418-19 (1993)). A jury instruction on flight requires the
jury to first find that there was a departure and then to find
that the motive for the departure was an attempt to avoid arrest
or prosecution. Mann,
132 N.J. at 421 (citing State v. Wilson,
57 N.J. 39, 49 (1970)). Accordingly, a jury must be able to draw
reasonable inferences from the evidence that defendant's motive
was to avoid apprehension on the charged offense. Randolph,
228 N.J. at 594-95.
Here, the neighbor testified that when she pulled defendant
off of the victim, she recognized defendant, told him to leave,
he apologized to her, and he walked away quickly from the scene.
The jury also heard testimony from the victim that when defendant
was following her, she pulled out her cell phone and told defendant
that she would call the police. Accordingly, there was sufficient
evidence from which the jury could infer that defendant left the
8 A-1711-16T1
scene to avoid apprehension in connection with his assault of the
victim. We, therefore, find no plain error in the trial court
instructing the jury on flight.
Nor do we find any error in the flight charge actually given.
The trial court's charge on flight largely tracked the Model Jury
Charge. Indeed, the only deviation from the Model Jury Charge was
made at the request of defense counsel. In that regard, the court
did not include the second sentence of the Model Jury Charge which
reads: "The defendant denies any flight, (or, the defendant denies
that the acts constituted flight)." Instead, immediately
following the flight charge, the trial court gave the jury the
following instructions:
Now, the defendant as part of his general
denial of guilt, contends that the State has
not presented sufficient, reliable evidence to
establish beyond a reasonable doubt that he
is the person who committed the alleged
offenses. And, indeed, was the person who
left the scene of the alleged offenses.
Defendant contends that the jury charge on flight itself did
not instruct the jury on the State's burden of proof. Defendant
then argues that the appropriate burden is a preponderance of
evidence, since flight is not an element of the charged crime. In
response, the State asserts that the charge does not need to
address the burden. We need not resolve this issue on this appeal.
9 A-1711-16T1
Here, defendant's request to modify the charge made it clear
to the jury that defendant was denying he was the person who left
the scene of the offenses. Indeed, the instruction given reminded
the jury that the State had to prove "beyond a reasonable doubt
that [defendant] is the person who committed the alleged offenses.
And, indeed, was the person who left the scene of the alleged
offenses." Consequently, considering the flight charge in the
context of the entire jury charge, there was no error, much less
plain error "clearly capable of producing an unjust result." R.
2:10-2; see also Mogull v. CB Commercial Real Estate Grp.,
162 N.J. 449, 466 (2000) (noting that "it is difficult to find that a
charge that follows the Model Charge so closely constitutes plain
error"). In short, the jury was properly instructed on flight and
immediately thereafter reminded that the State had the burden to
prove that defendant was the person who left the scene of the
alleged offenses.
2. The Out-of-Court Identification Charge
Defendant also contends that the trial court's omission of
the "Disguises/Changed Appearance" factor in the overall out-of-
court identification charge constituted plain error and requires
a new trial. We disagree.
In State v. Henderson,
208 N.J. 208 (2011), our Supreme Court
identified a number of factors to be considered in assessing the
10 A-1711-16T1
reliability of eyewitness identifications. The Court also
directed that new Model Jury Charges on eyewitness identifications
were to be developed, taking into account all of the "variables"
addressed in its decision. Id. at 298-99.
As a result of the Henderson Court's decision, the Model Jury
Charge on out-of-court identification now includes various factors
a jury should consider in deciding what weight, if any, it should
give to eyewitness identification testimony. There are five
factors that include: (1) opportunity to view and the degree of
attention; (2) prior description of the perpetrator; (3)
confidence and accuracy; (4) time elapsed; and (5) cross-racial
effects. The Model Jury Charge instructs that the court should
select and choose the appropriate factors based upon the
identification evidence elicited at trial.
Further, the Model Jury Charge instructs that on the first
factor – the witness' opportunity to view and degree of attention
– the court should choose from seven sub-factors that can affect
a witness' view and degree of attention. Those sub-factors
include: (a) stress; (b) duration; (c) focus; (d) distance; (e)
lighting; (f) intoxication; and (g) disguises/changed appearance.
With regard to "Disguises/Changed Appearance," the Model Jury
Charge provides:
11 A-1711-16T1
The perpetrator's use of a disguise can effect
a witness' ability both to remember and
identify the perpetrator. Disguises like
hats, sunglasses, or masks can reduce the
accuracy of an identification. Similarly, if
facial features are altered between the time
of the event and a later identification
procedure, the accuracy of the identification
may decrease.
[Model Jury Charges (Criminal),
"Identification: Out-of-Court Identification
Only (Non-2C)" (rev. July 19, 2012).]
Here, the trial court did not include the "Disguises/Changed
Appearance" portion of the charge. Critically, defendant did not
request that portion of the charge, and did not object to the
omission of that portion at the time the charge was given.
The testimony at trial established that the neighbor
recognized defendant based on her prior and frequent contacts with
him. She identified defendant as the assailant twice: once in a
photo array and again at trial. While she testified that defendant
was wearing glasses at the time of the assault, there was no
evidence that defendant had attempted to disguise himself or change
his appearance. Consequently, we find no plain error in the court
not giving the instruction on "Disguises/Changed Appearance."
B. The Sentences
Defendant challenges his sentences contending that the
sentencing court improperly ran his sentences consecutively and
imposed excessive sentences. We disagree.
12 A-1711-16T1
We review sentencing decisions for an abuse of discretion.
State v. Blackmon,
202 N.J. 283, 297 (2010). In so doing, we
"must not substitute [our] judgment for that of the sentencing
court." State v. Fuentes,
217 N.J. 57, 70 (2014) (citing State
v. O'Donnell,
117 N.J. 210, 215 (1989)). Instead, we will affirm
a sentence unless
(1) the sentencing guidelines were violated;
(2) the aggravating and mitigating factors
found by the sentencing court were not based
upon competent and credible evidence in the
record; or
(3) "the application of the guidelines to the
facts of [the] case makes the sentence clearly
unreasonable so as to shock the judicial
conscience."
[Ibid. (quoting State v. Roth,
95 N.J. 334,
364-65 (1984)).]
Whether a sentence violates sentencing guidelines is a question
of law that we review de novo. State v. Robinson,
217 N.J. 594,
604 (2014).
Where a defendant receives more than one sentence of
imprisonment "for more than one offense . . . such multiple
sentences shall run concurrently or consecutively as the court
determines at the time of sentence."
N.J.S.A. 2C:44-5(a). In
deciding whether to impose consecutive or concurrent sentences,
trial courts must consider the factors set forth and explained in
13 A-1711-16T1
State v. Yarbough,
100 N.J. 627, 643-44 (1985), cert. denied,
475 U.S. 1014 (1986). The Yarbough factors focus upon "the nature and
number of offenses for which the defendant is being sentenced,
whether the offenses occurred at different times or places, and
whether they involve numerous or separate victims." State v.
Carey,
168 N.J. 413, 423 (2001). "When a sentencing court properly
evaluates the Yarbough factors in light of the record, the court's
decision will not normally be disturbed on appeal." State v.
Miller,
205 N.J. 109, 129 (2011).
Here, defendant was convicted of four crimes: first-degree
kidnapping, third-degree aggravated criminal sexual contact,
second-degree attempted aggravated sexual assault, and second-
degree attempted sexual assault. His convictions for aggravated
criminal sexual contact and attempted sexual assault were merged
with his conviction for attempted aggravated sexual assault. As
already noted, defendant was then sentenced to twenty-eight years
in prison on the conviction for kidnapping and a consecutive nine
years in prison on the conviction for attempted aggravated sexual
assault.
The sentencing court found aggravating factors three,
N.J.S.A. 2C:44-1(a)(3) (likelihood of committing another offense),
six,
N.J.S.A. 2C:44-1(a)(6) (prior criminal record), and nine,
N.J.S.A. 2C:44-1(a)(9) (need for deterrence). The court also
14 A-1711-16T1
found that there were no mitigating factors. Those findings were
amply supported by the record. In particular, the court relied
on defendant's criminal record, which included five prior
indictable convictions, including prior convictions for sexual
offenses.
The court then discussed Yarbrough and evaluated its factors.
The court made specific findings that the attempted aggravated
sexual assault and the kidnapping should not merge and should be
treated as two separate criminal acts because they involved
distinct actions and each crime had a distinct impact on the
victim. See State v. Cole,
120 N.J. 321, 332-35 (1990).
Consequently, the sentencing court provided an adequate
explanation in support of its decision to impose consecutive
sentences. We also discern no abuse of discretion in the sentences
imposed.
Affirmed.
15 A-1711-16T1
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
