The presentence investigation report, upon which the Board relied for the 15–point assessment, stated merely that “ [i]ssues identified by Probation included continued drug and alcohol use” and that defendant refused substance abuse treatment. There is, however, no evidence that defendant was ever screened for substance abuse issues ( cf. People v. Madera, 100 A.D.3d 1111, 1112, 953 N.Y.S.2d 385;People v. Faul, 81 A.D.3d 1246, 1247, 916 N.Y.S.2d 422), “only very limited information about his alleged prior history of drug and alcohol abuse” ( People v. Mabee, 69 A.D.3d 820, 820, 893 N.Y.S.2d 585,lv. denied15 N.Y.3d 703, 2010 WL 2572036), and no information about what treatment was recommended or why treatment was recommended ( see Madera, 100 A.D.3d at 1112, 953 N.Y.S.2d 385;Faul, 81 A.D.3d at 1247, 916 N.Y.S.2d 422). Under these circumstances, the case summary alone is insufficient “to satisfy the People's burden of establishing that risk factor by clear and convincing evidence” ( Madera, 100 A.D.3d at 1112, 953 N.Y.S.2d 385;see Faul, 81 A.D.3d at 1247–1248, 916 N.Y.S.2d 422;Mabee, 69 A.D.3d at 820, 893 N.Y.S.2d 585;see also People v. Judson, 50 A.D.3d 1242, 1243, 855 N.Y.S.2d 694).
A " ‘history’ " of substance " ‘abuse’ " within the meaning of risk factor 11 exists only when there is a "pattern of drug or alcohol use in [the] defendant's history" ( People v. Leach, 106 A.D.3d 1387, 1388, 966 N.Y.S.2d 275 [3d Dept. 2013] ). Thus, "[e]vidence of social or occasional use of drugs or alcohol ‘does not establish a history of drug or alcohol abuse by [the requisite] clear and convincing evidence’ " ( People v. Saunders, 156 A.D.3d 1138, 1139, 67 N.Y.S.3d 351 [3d Dept. 2017] ; seePeople v. Coger, 108 A.D.3d 1234, 1235–1236, 969 N.Y.S.2d 374 [4th Dept. 2013] ; People v. Faul, 81 A.D.3d 1246, 1247–1248, 916 N.Y.S.2d 422 [4th Dept. 2011] ). Here, the People did not establish by clear and convincing evidence that defendant had the requisite pattern of drug use, and there is no "indication in the record that drugs ... played a role in the instant offense" ( People v. Davis, 135 A.D.3d 1256, 1256, 23 N.Y.S.3d 492 [3d Dept. 2016], lv denied 27 N.Y.3d 904, 2016 WL 1691883 [2016] ).
The People also presented evidence that defendant smoked marihuana in his teenage years and early twenties, but thereafter participated in a drug treatment program and, at the time of the presentence interview, had not smoked marihuana for four years. We agree with defendant that the People's evidence established that his recent history of drug use was one of prolonged abstinence and was also insufficient to warrant the assessment of points under risk factor 11 (seePeople v. Faul, 81 A.D.3d 1246, 1248, 916 N.Y.S.2d 422 [4th Dept 2011] ; People v. Wilbert, 35 A.D.3d 1220, 1221, 825 N.Y.S.2d 884 [4th Dept 2006] ; People v. Abdullah, 31 A.D.3d 515, 516, 818 N.Y.S.2d 267 [2d Dept 2006] ). In light of our determination, defendant's remaining contentions are academic.
Thus, contrary to the defendant's contention, the record confirms that he was assessed 20 points under risk factor five.The Supreme Court erred, however, in assessing the defendant 15 points under risk factor eleven (drug or alcohol abuse), as the People failed to establish, by clear and convincing evidence, that the defendant had a history of alcohol abuse (see People v. Palmer, 20 N.Y.3d 373, 378–379, 960 N.Y.S.2d 719, 984 N.E.2d 917 ; People v. Rohoman, 121 A.D.3d 876, 877, 994 N.Y.S.2d 389 ; People v. Coger, 108 A.D.3d 1234, 1234–1235, 969 N.Y.S.2d 374 ; People v. Faul, 81 A.D.3d 1246, 1247–1248, 916 N.Y.S.2d 422 ; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006] ).The defendant's remaining contention is unpreserved for appellate review (see People v. Charache, 9 N.Y.3d 829, 841 N.Y.S.2d 223, 873 N.E.2d 267 ; People v. Baker, 138 A.D.3d 814, 28 N.Y.S.3d 333; People v. DeDona, 102 A.D.3d 58, 63, 954 N.Y.S.2d 541 ), and we decline to reach it in the interest of justice.
According to the SORA 2006 Risk Assessment Guidelines and Commentary (Guidelines), that factor “focuses on the offender's history of [substance] abuse and the circumstances at the time of the offense” (id. at 15). “[T]he fact that alcohol was not a factor in the underlying offense is not dispositive inasmuch as the [G]uidelines further provide that ‘[a]n offender need not be abusing alcohol or drugs at the time of the instant offense to receive points in this category’ ” (People v. Faul, 81 A.D.3d 1246, 1248, 916 N.Y.S.2d 422). In addition, although we agree with defendant that the court erred in calculating his total point score, the correct total of 100 points would still yield a presumptive level two assessment.