Suffolk DA to delay release of Steve Levy's 2011 nonprosecution agreement

The Suffolk District Attorney’s Office will delay release of former Suffolk County Executive Steve Levy’s long-secret nonprosecution agreement after lawyers for Levy indicated they plan to appeal a recent decision granting Newsday access to the document, the district attorney's office said Monday.

In a letter to Newsday on Monday, the Freedom of Information Law officer for the district attorney's office said attorneys for Levy in a Feb. 2 letter “memorialized an intent to appeal” the unanimous decision of the state Appellate Division last week affirming a lower-court ruling that the district attorney release the document.

The agreement that Levy reached with former Suffolk District Attorney Thomas Spota in 2011 led him to give up his campaign war chest of some $4 million and refrain from seeking public office. Contents of the agreement have never been publicized.

Newsday filed a Freedom of Information Law request for the document in February 2021 after Levy made public comments about it in an opinion piece in Newsday. After former Suffolk District Attorney Tim Sini’s office agreed to release the document to Newsday, Levy filed suit in state Supreme Court in Suffolk, seeking to block its release.

Retired state Supreme Court Justice Paul Baisley Jr. in July 2021 agreed with Sini’s office and Newsday that the document, while labeled “under seal, privileged and confidential,” contained no language establishing the terms for its secrecy. 

In its unanimous decision in Newsday’s favor, the three-judge Appellate Division panel found Baisley “properly determined that any promise of confidentiality made to [Levy] did not afford a protection against disclosure of the non-prosecution agreement under FOIL,” the state Freedom of Information Law, “and that the agreement should be released.”

That finding stands in contrast to legal briefs filed by Sini’s successor, current Suffolk District Attorney Ray Tierney, who argued that the document should remain secret because its release could have a “chilling effect” on future witness cooperation.

David Besso, an attorney for Levy, in an email Monday said, "We are presently researching a potential appeal." 

Besso charged the Appellate Division "disregarded Mr. Levy’s right of privacy, given that this whole untoward process was initiated by the Spota-Burke team that was convicted for its pattern of employing illicit unconstitutional tactics to harass and spy on their political enemies." 

Paul Sabatino, former counsel to the Suffolk County Legislature and a one-time chief deputy county executive under Levy, said he believes Levy has only the slimmest chance of success on appeal, noting that Levy must first get permission from the Appellate Division to file one.

Sabatino said that’s not likely given that the appellate panel issued a unanimous decision that sided with the lower court, and that appeals to the higher court are generally only granted for cases with broader statewide implications.

Spota, who is serving a prison term on charges unrelated to the Levy nonprosecution case, in 2012 released a separate special grand-jury report that found that Levy manipulated the county’s ethics commission to wage attacks on political opponents, among other findings, according to a Newsday story at the time. (The report itself does not publicly name officials, but labels them with letters of the alphabet.)

Actions by Levy, certain members of his administration and the ethics commission constituted a pattern of misconduct that "completely destroyed the ethics infrastructure" in the county,” according to the report.

In a statement Monday, Levy spokesman John Zaher noted that the ethics complaints Levy filed were based on a "a legitimate issue with a former employee previously involved in negotiations with the union immediately thereafter going to work for that same union, which seemed to be a clear conflict. This was not a misuse of the ethics commission. This is what an ethics commission is designed for."

Spota at the time said the grand jury report “exposes behavior by public officials acting in the name of the ethics commission that was unprincipled and wrong, but not criminal.” He urged county legislators to “act to make certain that future public officials can be prosecuted for the behavior uncovered in this report."

By Mark Harrington

mark.harrington@newsday.comMHarringtonNews

Mark Harrington, a Newsday reporter since 1999, covers energy, wineries, Indian affairs and fisheries.