“The State Police Office of Forensic Science may establish an electronic submission/reporting system to provide an efficient means by which to make and respond to prioritization requests. In that event, the prosecutor shall make a prioritization request to the Office of Forensic Science pursuant to this Section by means of the system established by that Office.
An agency upon receipt of a prioritization request shall use all available means to submit a requested report and/or complete a requested test/examination and submit a report thereon on or before the date specified in the prosecutor’s request. If it is not feasible to submit a requested report or complete a test/examination and submit a report thereon by the date specified by the prosecutor, the agency shall within five business days of receiving the request notify the prosecutor in writing and shall explain the reasons why it is not feasible to comply with the prosecutor’s request. The agency also shall indicate the earliest possible date on which the requested report will be submitted or on which the requested test/examination will be ·completed and report thereon submitted to the prosecutor.
This Section shall be deemed to supersede and preempt any standard operating procedure or protocol of an agency operating under the authority of the laws of the State of New Jersey that otherwise would determine the priority to be given to preparing a report or conducting a test or examination (e.g., a general practice to prioritize tests by the order in which they had been submitted). See also Section 10.4 (Director of the Division of Criminal Justice authorized to exercise Attorney General’s authority as State’s chief law enforcement officer to resolve disputes and order timely completion of required reports).”
Given that lab reports routinely take months to produce, it is anticipated that prosecutors will seek to leverage guilty pleas without lab reports in the wake of the new speedy trial deadlines. Likely scenarios will involve guilty pleas to “wandering to obtain a controlled substance” or “failure to turn over a controlled substance” in simple possession cases while “conspiracy to distribute” is offered in distribution cases. In the latter, an amendment to a conspiracy charge could be the difference between probation and prison with parole ineligibility in the cases where the defendant has a prior conviction for distribution and is thus otherwise subject to a mandatory extended term under State v. Brimage. Other prosecutors may threaten to refuse to offer any plea bargain if a defendant insists upon a lab report. This response by the state may be unethical to the extent that they are essentially withholding discovery that they are required to turn over and attempting to coerce the defendant into waiving his or her fundamental right to the material. Such a scenario might make a motion for independent lab testing (at the defendant’s expense or otherwise) an appropriate response.
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