IV. INTERLOCUTORY APPEALS
A. To the Appellate Division
Appeals from non-final, or interlocutory orders of the
trial courts can be taken on the filing of a motion for leave
to appeal pursuant to R. 2:2-3(b) and 2:2-4. The
application must be filed within 20 days after the date of
service of the order, unless a motion is made to the trial
court for reconsideration within 20 days after service of
the order, in which event the time for filing is extended
for a period of 20 days following the date of service of the
order deciding the motion for reconsideration. R. 2:5-
6(a). Applications for leave to cross-appeal are governed
by the same time limitations, i.e. 20 days after service of
the court order or after disposition of the motion for
reconsideration. R. 2:5-6(b). If an appeal from an
interlocutory order is allowed, an application for leave to
cross-appeal may be made by motion within 10 days after
the date of service of the order of the appellate court
allowing the appeal. Id. The time for interlocutory
appeal may be extended for a period not exceeding an
additional 15 days. R. 2:4-4(b)(1).
R. 2:2-4 provides the standard for review: the
Appellate Division may grant leave “in the interest of
justice.” This power to grant relief has been described as
“highly discretionary” and “exercised only sparingly.”
State v. Reldan, 100 N.J. 187, 205 (1985). It is granted
in the interests of justice to consider a fundamental claim
which would infect the trial and would otherwise be
irremediable in the ordinary cause. See also Appeal of
Pennsylvania Railroad Co., 20 N.J. 398 (1956); Golden
Estates v. Continental Cas., 317 N.J. Super. 82, 88 (App.
Div. 1998); State v. Alfano, 305 N.J. Super. 178, 190
(App. Div. 1997). The movant should apply to the trial
court for a stay of proceedings pending the appeal, and if
unsuccessful, apply for a stay of the lower court
proceedings to the Appellate Division. R. 2:9-3. If
appellant files a notice of appeal rather than the required
motion for leave, the Appellate Division may grant leave
nunc pro tunc upon a showing of good cause and the
absence of prejudice, provided that the appeal was in fact
taken within the time for final judgments. R. 2:4-4(b).
Denial of leave to appeal does not foreclose or
prejudice further review of the issue on appeal of the final
judgment. See In re Contempt of Carton, 48 N.J. 9 (1966)
(appeal from final judgment raises validity of all
interlocutory orders).
B. To the Supreme Court
R. 2:2-2 provides that appeals may be taken to the
Supreme Court by leave from interlocutory orders of the
trial court where the death penalty has been imposed,
and of the Appellate Division “when necessary to prevent
irreparable injury.” The rule also provides for petition for
certification to the Supreme Court from interlocutory
appeals pending unheard in the Appellate Division.V. TIME TO APPEAL
R. 2:4 governs the time for appeal, although there are
references in other appellate rules to time limitations.
The notice of appeal from final judgment must be filed
within 45 days of the entry of judgment, R. 2:4-1(a),
which in criminal cases means from the date of sentencing
when the judgment is signed by the judge and entered by
the clerk. R. 3:21-5. A cross-appeal must be filed within
15 days after service of the notice of appeal. R. 2:4-2. If
the prosecutor appeals from the judgment, e.g., from the
sentence pursuant to N.J.S.A. 2C:44-1f(2), before the
defendant, and defendant files the cross-appeal, the clerk
should be notified to switch the designations of appellant
to the defendant and cross-appellant to the State to
facilitate filing transcripts and scheduling. A notice of
appeal filed out of time must ordinarily be accompanied
by a motion to file nunc pro tunc, although the clerk will
ordinarily accommodate the Office of the Public
Defender and routinely allow such filings up to 6 months
out of time without formal motion. See also State v.
Altman, 181 N.J. Super. 539 (App. Div. 1981).In State v. Fletcher, 174 N.J. Super. 609 (App. Div.
1980), certif. denied 89 N.J. 444 (1982), the court held
that the 45 day period does not begin to run until the
defendant has been advised by the trial court of his right
to appeal and, if he is indigent, of his right to apply for
counsel. This advice by the trial court is required by R.
3:21-4(h).R. 2:4-3 provides for the tolling of the time for appeal
in certain circumstances: (a) by the death of the aggrieved
party, or by the death, disbarment, resignation or
suspension of the attorney of record for such party, but
the time runs anew from the date of that occurrence; (b)
by the filing of a motion for reconsideration to the
Appellate Division, but the time runs anew from the date
of entry of the order denying such application; © in
criminal actions by the timely filing and service of a
motion to the trial court for judgment of acquittal n.o.v.
or after the jury is discharge without having reached a
verdict pursuant to R. 3:18-2 or for a new trial pursuant