NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 9, 2013.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-06-1169.
Joseph E. Krakora, Public Defender, attorney for appellant (Brian P. Keenan, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief).
Before Judges Hayden and Hoffman.
Defendant Pedro Peralta-Pena appeals from a June 29, 2010 judgment of conviction, entered after a jury found him guilty of fourth-degree sexual contact, N.J.S.A. 2C:14-3b, and third- degree child endangering, N.J.S.A. 2C:24-4a. For the reasons that follow, we reverse and remand for a new trial.
According to the State's proofs, on December 19, 2008, defendant, who was twenty-one years old, received a telephone call from fourteen-year-old Jane,  who invited him to come over to her house. She told him that she was "bored" and that she was alone. At the time, Jane's father was at work and her mother had gone to the hospital because she felt sick. That afternoon, Jane's father came home from work early and caught defendant hiding in the bathroom. According to Jane's father, he confronted defendant, who admitted that he had been kissing Jane, and that he had placed his hand on her breasts and vagina.
Jane's father called the police and upon arrival, he told the responding officer what defendant had told him. At this point, the officer proceeded to question defendant, who, according to the officer, repeated the same admissions before receiving Miranda warnings. The day before trial began, the judge suppressed defendant's statements to the police based upon the failure to provide Miranda warnings.
At trial, Jane's father testified about defendant's admission of breast and vaginal touching. Jane testified that she and defendant had been kissing but she did not recall him touching her breasts or private parts. The State also presented the testimony of the police officer who responded to the call following a report of "a sex crime" involving a child. The officer testified that he interviewed Jane and her father. Based upon the judge's suppression of defendant's statements, the officer was not asked if he questioned defendant, nor did the officer mention any discussions with him. Defendant did not testify. Thus, the case hinged on the accuracy and credibility of Jane's father's testimony, because Jane's testimony did not support the State's case.
During her summation, the prosecutor reviewed Jane's father's testimony:
He got on the witness stand and made it clear to you that he didn't see any conduct that day. He made clear to you that defendant was hiding in the bathtub.
In fact, [Jane's father] was more generous than most fathers would be with the defendant, and I believe that came across in his testimony. I submit to you that [Jane's father's] testimony is credible. This defendant admitted to him that he had been kissing his [fourteen]-year-old daughter. He admitted that he touched her ...