Judge order's Levy's nonprosecution agreement be released to Newsday

A State Supreme Court judge has denied a request by former Suffolk County Executive Steve Levy to block release of his career-ending nonprosecution agreement, ordering that the decadeold document be released to Newsday.

In a ruling Thursday, Suffolk County Supreme Court Judge Paul J. Baisley Jr. noted there was "no promise, covenant or agreement to maintain its confidentiality contained within the document itself" in ordering the agreement to be released after a 10-day waiting period. He also ordered all documents in the case unsealed.

Levy's lawyer said he would appeal the ruling.

Newsday filed a Freedom of Information Law request for the 2011 document in February, and Suffolk District Attorney Timothy Sini's office had moved to comply until Levy in May sued the DA to block it. Levy initially filed his lawsuit against the DA anonymously, but Suffolk County Attorney Dennis Cohen successfully moved to have him named as the plaintiff.

Referring to Levy and his lawyer, David Besso, as both "experienced" attorneys, Baisley wrote while Levy "attests that there was a promise of confidentiality, he provides no explanation for why the promise was not contained in the agreement."

Moreover, he wrote, "There has been no proof submitted that the agreement was ever sealed pursuant to a court order." As such, Baisley wrote, the nonprosecution agreement is "merely called ‘sealed, privileged and confidential," as there is "no language within the agreement to support the intention to keep the agreement from being disclosed."

Even if Levy had an expectation that the agreement would remain confidential, Baisley concluded, "a mere promise of confidentiality does not afford a record protection against disclosure" under the state Freedom of Information Law.

Besso in a statement said Levy and his family "were spied upon for years by those considering him the 'enemy' and 'uncontrollable' in their efforts to wrest control of the police department expenditures and leadership. We do not believe that the poisonous fruits of that targeting should be publicly disclosed. Thus, we will appeal to preserve the privacy of all who were subjected to these tactics, which included the alleged blackmailing of Mr. Levy’s aide."

Besso wrote that Levy, "in an effort to end the harassment," entered into the agreement "to have the unsavory investigation closed." He noted there were no charges lodged and there was no admission of criminal conduct on his part. Levy and Besso have declined to say whether a grand jury had been hearing evidence in the case and whether an indictment was about to be handed up.

Besso in his statement said "concerns remain about the enormous invasion of privacy in parts of the files obtained by this yearslong targeting of Mr. Levy and his family …"

He concluded, "That is why before this decision was rendered, we sought a settlement with the county to allow for some disclosure, if an agreement could be obtained protecting those privacy concerns. That offer was rejected."

In a statement, the Suffolk DA’s office said, "We think this was the correct decision and intend on producing the document requested within the parameters of the order."

Baisley denied a separate motion by Newsday to intervene in the case, calling it moot.

Newsday's FOIL request cited Levy’s public comments in a Newsday opinion item characterizing the agreement. Levy called the undisclosed offenses cited in former Suffolk DA Thomas Spota’s investigation "irregularities," and said he regretted signing the agreement, which required that he forfeit his $4 million campaign fund and not seek public office.

Spota has since been convicted of federal obstruction charges in an unrelated investigation. His top aide, anticorruption chief Christopher McPartland, who was also convicted of obstruction charges, through his attorney had called in recent weeks for the release of the agreement and all investigative material in the Levy matter.

Spota’s investigation into Levy’s campaign practices and finances "revealed serious issues with regard to fundraising," Spota said in 2011, but he never disclosed any of those allegations.

Asked Thursday if a grand jury had been reviewing the case and whether an indictment had been imminent, Levy in an email said, "We had no knowledge any indictment from a grand jury [was] forthcoming."

By Mark Harrington

mark.harrington@newsday.comMHarringtonNews

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