By Jill Harmacinski
---- — NORTH ANDOVER — The state’s appeals court has tossed out the most serious conviction against a North Andover man convicted two years ago of a bloody baseball bat beating of his pizza shop employee in Tyngsboro.
Eric Sideri, 51, was sentenced to four to five years in state prison after he was found guilty on Feb. 13, 2012, of assault and battery with a dangerous weapon.
Since the charge has been reversed by the appeals court, his attorney, Rosemary Curran Scapicchio of Boston, said she will ask a judge to set bail for Sideri, allowing his release from prison.
The Middlesex County District Attorney’s Office, which prosecuted the case, has 28 days to appeal the Massachusetts Appeals Court decision issued on Jan. 29.
The victim, an assistant manager at Sideri’s restaurant, Angela’s Coal Fired Pizza in Tyngsboro, was working on March 21, 2009, when shortly after midnight Sideri allegedly attacked him with a baseball bat and accused him of stealing $21,000 from the restaurant.
Following his jury trial conviction, Middlesex Superior Court Judge Sandra Hamlin sentenced Sideri to four to five years in state prison on the assault and battery with a dangerous weapon charge and three years probation on charges of assault and battery and use of a motor vehicle without authority.
The jury acquitted Sideri on kidnapping, threats and two additional counts of assault and battery with a dangerous weapon.
The appeal’s court ruled that over the objection of Sideri’s defense at trial, the judge did not instruct the jury to consider convicting Sideri of a lesser assault and battery charge.
“The jury had a rational basis for convicting the defendant of a lesser included offense,” according to the decision.
Sideri “testified that he used his fists in the altercation with the victim. He also testified he had not touched a baseball bat in 25 years. Furthermore, an expert witness testified that the victim’s injuries could have been caused by a fist, a table, or a fall. The testimony gave the jury a rational basis to believe the altercation constituted an assault and battery but not one using a dangerous weapon.”
“Removing the lesser included offense from the jury’s consideration thus was in error,” according to the decision.
The case was prosecuted by then Middlesex District Attorney Gerry Leone’s office. The appeals court said the case “is remanded for such further action as the Commonwealth may choose to pursue or for such resentencing as the judge may undertake.”
The Middlesex District Attorney is now Marian Ryan. It was unclear yesterday what action her office will take in response to the appeals court decision.
Leone, in a statement issued in May 2012 after sentencing, said Sideri “took advantage of his authority as the victim’s employer, by intimidating the victim, brutally attacking him, and then attempting to cover up the violent crimes ...”
The victim said he knew nothing about the missing money. But Sideri allegedly proceeded to punch the victim several times in the face and struck him with a baseball bat.
Authorities said Sideri then took the victim’s car keys and left the restaurant. When Sideri returned, he told the victim that he moved the victim’s car to prevent anyone from thinking he was still at the restaurant.
The victim escaped that night by running through the woods to a nearby convenience store where he was helped by a store clerk who found him carrying a blood soaked rag and bleeding profusely outside and then inside the store. The victim called his girlfriend who then picked him up, brought him to the hospital and alerted authorities.
The victim denied he stole any money and authorities found there was not proof he had.
Alfonso Guevara of Windham, N.H., co-operator of the restaurant, who prosecutors said was present, faced the same charges under a joint venture theory. He was acquitted.