If their recent good luck holds out, Mario Fortunato could soon be baking bread and pastries at Fortunato Brothers, his family-owned landmark bakery in Williamsburg, Brooklyn, and Carmelo “Carmine Pizza” Polito could be back making pizzas and calzones at his pizzeria in Astoria, Queens, the Polito Pizza Corporation.

Talk about remarkable good fortune.

Fortunato,57,and Polito,45,are both reputed longtime Genovese associates. Last year they began serving life sentences for the racketeering murder of Sabatino “Tino” Lombardi and the attempted murder of Michael “Cookie” D’Urso.

Because of some expert lawyering, as well as a convoluted 42-page ruling issued earlier this month by a three judge panel of the Second Circuit Court of Appeals, both men could be getting their hands back in the dough.

The appeals court agreed that there was overwhelming evidence that the men had taken part in Lombardi’s slaying and the attempted murder of D’Urso at a Williamsburg social club in 1994. But it ruled that Polito and Fortunato shouldn’t have been found guilty because the shootings weren’t Mafia related and could not be prosecuted under the racketeering statutes.

Judges Roger Miner, Robert Katzman, and Nicholas Tsoucalas said the motive for the murder plot was greed – Polito, a degenerate gambler, owed his victims $60,000 – and had nothing to do with mob activities, as prosecutors claimed. In agreeing with Polito’s lawyer, noted appeals specialist Diarmuid White, the court wrote that “the evidence was insufficient” to establish the charge that Polito and Fortunato murdered Lombardi to “maintain or increase” their positions in the Genovese family, or that the shootings were in any way related to crime-family business.

The ruling has prompted much head scratching on both sides of the aisle. Wiseguy crimes generally stem from organized, wiseguy activities. Hence, when John Gotti took on Paul Castellano in 1985, prosecutors successfully argued that he was looking to take over the crime family. The motive ascribed to Polito is decidedly less lofty than Gotti’s, but nonetheless mob-connected: Polito wanted to switch mob crews, earn more money, and perhaps become a “made guy.”

According to trial testimony, Lombardi and D’Urso had blocked Polito from moving from their crew – where acting capo Joseph Zito was calling the shots – to one headed by capo Alphonse “Allie Shades” Malangone by demanding that before he switched, Polito pay them what he owed.

The court said testimony about that motive by D’Urso, who was shot in the head but survived, was “conclusory, uncorroborated, biased, and illogical,” adding that no “rational juror could conclude that Polito participated in the murder of Lombardi and the attempted murder of D’Urso to enable him to switch crews.”

Really? In 1993, Polito and Fortunato had taken part in a $1.4 million bank robbery with members of Malangone’s crew. It would hardly be irrational to conclude that Polito wanted to get away from Zito, who was content with his bookmaking and loan sharking business, and make big bucks robbing banks. In Zito’s crew, Polito’s primary function was to make loan shark payments to Lombardi, a close friend of the low-key Zito. With all due respect, wise guys do dumb things all the time, but it seems to Gang Land that Polito would have had to have been a moron to want to stay.

According to the government’s case, killing Lombardi and D’Urso – all were in Zito’s crew in 1994 – would do much more than eradicate Polito’s nagging debts. It would free him up to ply his main gangster trade, bank robbery, under Malangone.

“Joe Zito didn’t like that type of activity going on” in his crew, D’Urso testified. Polito “knew that he was pretty much restricted on what he could do under Joe Zito. He could never get made. He could never become a soldier. So he wanted to be with a more active crew like Allie Shades because they went and did these things.”

D’Urso’s account was “biased and incredible,” the court said.

The three judges also bought another argument by Mr. White. They noted that Polito’s murder plot was against “Genovese family protocols” and had “actually decreased his standing in the Genovese family,” and that Polito had “laid low and denied any involvement in the shootings.”

Hmmm. Wiseguys break rules every day. Gotti violated a key mob protocol by killing his Mafia boss. Not surprisingly, he denied it. And despite his success, he “decreased his standing” with other Mafia bosses, who set in motion a plot that killed Gotti’s first underboss in a bomb blast intended for the Dapper Don.

If the powerful Gotti faced retribution, it’s really no surprise that Polito, an associate with much less clout, faced family ire over the shootings.

On top of everything else, Polito botched the job! D’Urso survived, causing the family years of grief as he sought retribution, causing feuds and sit-downs between Malangone and the capo who took over Zito’s crew, Salvatore “Sammy Meatballs” Aparo.

Four years after the shootings, in 1998, Polito was still hanging around with Malangone’s crew and looking to get away from Aparo, according to conversations that were recorded by D’Urso during a three-year stint as an undercover FBI operative. The conversations were played at trial for the “irrational” jurors.

In one, Sammy Meatballs told D’Urso about a heated dispute he had when Allie Shades pushed to get Polito “released” to the Luchese family.

“I flipped out,” bellowed Aparo. What is Malangone doing “giving something away that don’t belong to him? I mean this is what this life is all about.”

To the consternation of Lombardi’s relatives, following the appeals court ruling, Brooklyn Federal Judge I. Leo Glasser ordered Polito and Fortunato freed on $1 million bail to await further proceedings. “Everybody needs to know they’re not innocent,” said Lombardi’s sister, Assunta Rozza. “I live across the street from Fortunato’s pastry shop and I don’t know how I’m going to handle seeing him there.”

On the day the men were set for release, however, Judge Glasser reversed himself after Assistant U.S. Attorney Paul Weinstein asked for an additional 30 days to obtain permission from Justice Department officials in Washington to appeal the decision.

Mr. White and trial lawyers for the men, Gerald McMahon and Paul Schechtman, say they will appeal Judge Glasser’s ruling and seek immediate release for their clients.

“The time has come,” said Mr. McMahon, “to allow them to return to their families as the government decides how to proceed, or if to proceed.”