Appellate Division upholds dismissal of Steve Levy suit over agreement with Spota

A panel of the state Appellate Division on Wednesday affirmed a lower-court ruling that ordered former Suffolk County Executive Steve Levy to turn over to Newsday a copy of the non-prosecution agreement that forced him from office.

In a decision released by the three-judge panel Wednesday, the court found that a prior decision by former state Supreme Court Justice Paul Baisley Jr. “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.”

David Besso, an attorney for Levy, said his client was “considering an appeal to the state’s highest court,” the Court of Appeals.

“Mr. Levy is disappointed with the court’s decision,” Besso said in an emailed statement. “Mr. Levy was vindictively spied upon by the Spota/Burke cabal because he was an uncontrollable enemy in their effort to anoint Burke police chief. No officials are safe if rogue prosecutors are able to spy on their enemies, never bring charges, and yet threaten to disclose all the private surveillance collected.”

Former Suffolk District Attorney Thomas Spota is currently serving a prison sentence based on corruption charges unrelated to the Levy case, and former Suffolk Police Chief James Burke served a prison term for beating a handcuffed suspect and covering it up more than a decade ago. 

Newsday filed a Freedom of Information Law request with the Suffolk County District Attorney’s Office in February 2021 seeking access to the long-withheld document after Levy made public statements about it in a column in Newsday. The agreement, under which Levy agreed to forfeit his campaign war chest and refrain from seeking public office, was signed in March 2011.

Former Suffolk District Attorney Tim Sini, in response to Newsday’s request, agreed to release the document, but Levy sued to block it. In deciding the case in July 2021, Baisley noted that Levy and his attorneys, in drawing up the non-prosecution agreement with Spota, had merely labeled the document “privileged and confidential” without incorporating language for terms of its nondisclosure.

Arguments before the Appellate panel in October focused on that lack of sealing language.

“But there’s nothing in the document which says it should be sealed,” Justice Francesca Connolly noted, echoing Baisley. “It says confidential, but it doesn’t say anything about sealing.”

Levy's lawyer argued that the parties to the agreement “relied on the title affixed to the top of the document.” 

David Schulz, an attorney who argued for Newsday in the October Appellate court hearing, cited the lack of evidence that information in the agreement was obtained on the basis of confidentiality. And he noted the state Freedom of Information Law provides only narrow exemptions that didn't apply in the Levy case.

Schulz argued that Levy’s privacy claims should be balanced against the public interest, “with the latter prevailing,” Newsday reported at the time. 

The appellate division as part of its decision denied Newsday’s motion to intervene in the case, calling it “academic” because of the prior ruling in the newspaper's favor.

Current Suffolk District Attorney Ray Tierney, in briefs filed as part of the Appellate Division case, parted with his predecessor Sini and expressed opposition to the release of the agreement to Newsday, citing its potential impact on current and future investigations, including with cooperating witnesses. No document indicates Levy was ever a cooperating witness in the case against him.

A spokeswoman for Tierney’s office did not respond to a request for comment. 

With Yancey Roy

By Mark Harrington

mark.harrington@newsday.comMHarringtonNews

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