The opinion of the court was delivered by: Scullin, Senior Judge
MEMORANDUM-DECISION AND ORDER
Petitioner Christopher Chanowitz is currently an inmate in the custody of the New York State Department of Correctional Services ("DOCS") at Woodbourne Correctional Facility. On March 14, 2000, an Ulster County jury found him guilty of attempted murder in the second degree, menacing in the second degree, and criminal possession of a weapon in the fourth degree. See Trial Transcript ("Tr.") at 817-18. He was sentenced to a fifteen-year prison term. See Sentencing Transcript ("Sentencing Tr.") at 33-35. Petitioner now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the grounds that (1) his Miranda*fn1 rights were violated, (2) the trial court violated his due process rights, (3) the evidence was insufficient to support his conviction for attempted murder, (4) trial counsel was ineffective, and (5) appellate counsel was ineffective.
A. Events of September 13, 1998
On the evening of September 13, 1998, [Petitioner] informed his spouse (hereinafter the victim) that he had a surprise for her in the garage of their marital residence. [Petitioner] then twice blindfolded the victim and escorted her to the garage, but on both occasions informed her that the "surprise" was not yet ready. Unbeknown to the victim, [Petitioner] had rigged a pulley to the roof of the garage through which he had threaded a rope with a noose. On the third trip to the garage, [Petitioner] lowered the noose over the victim's head,*fn2 at which point the victim removed the blindfold and noose and observed [Petitioner], who was wearing work gloves, clutching the other end of the rope.
People v. Chanowitz, 298 A.D.2d 767, 767 (3d Dep't 2002).
The victim noticed that the garage windows were blocked with plywood and a black garbage bag. See Tr. at 322. The victim asked Petitioner what was happening. He replied that he was going to "take her out" because he had "bad things to tell her." See id. at 323. Petitioner told the victim that, after he "took her out," he planned "to take himself out also." See id. at 324.
Petitioner then informed the victim that he had been involved with another woman, Kathy, for six years and that they had a child named Megan. See id. at 323-24. He told the victim that he wanted to live as a family with Kathy, Megan and Taylor, the daughter of Petitioner and the victim. See id. at 324-25.
The victim returned to the residence and called her sister, Kelly Longinott. Upon arriving at the victim's residence and learning of the evening's events, Longinott immediately dialed 911, as a result of which Deputy Sheriffs Adrian Dispenza and Craig Meisel soon arrived at the scene. Once there, the Deputies followed Longinott into the house and separated the victim and [Petitioner] . . . .
Chanowitz, 298 A.D.2d at 767.
Deputy Sheriff Dispenza took Petitioner into the kitchen and closed the door. See Tr. at 197-98, 212. Petitioner was very agitated. See id. at 198. Deputy Sheriff Dispenza asked Petitioner what had happened. Petitioner responded that he had done a terrible thing. Deputy Sheriff Dispenza then asked Petitioner what he had done. Petitioner told him that he "tried to commit a double suicide" by luring his wife into the garage and putting a rope arounder her neck and that he then planned to kill himself with a gun. See id. at 198-201, 551. Petitioner also told Deputy Sheriff Dispenza where the gun, the rope, and the blindfold were. See id. at 201-02, 205. The gun was not loaded, and Deputy Sheriff Dispenza did not find any ammunition around the gun or on Petitioner's person. See id. at 202-03.
Deputy Sheriff Dispenza did not give Petitioner Miranda warnings during their conversation in the kitchen. See Tr. at 213, 548. At trial, Petitioner testified that he tried to get up on more than one occasion but was told to remain seated. See id. at 547. He also stated that he was never told in the kitchen that he was in police custody or that he was being detained. See id. at 547-548. He testified that Deputy Sheriff Dispenza never pulled a gun on him or handcuffed him to the chair. See id. at 553. However, he testified that Deputy Sheriff Dispenza blocked him when he stood up and that he considered that a threat. See id. at 553.
Finally, Deputy Sheriff Dispenza collected the gun, the rope, and the blindfold and turned them over to Deputy Sheriff Meisel. See id. at 205. Deputy Sheriff Meisel placed Petitioner under arrest. See Appellant's Appendix ("AA") at 41.
B. County Court Proceedings
On February 5, 1999, the Ulster County grand jury issued an indictment charging Petitioner with attempted murder in the second degree, menacing in the second degree, and criminal possession of a weapon in the fourth degree. See AA at 4-5.
Petitioner moved to suppress his statements to Deputy Sheriff Dispenza and the items seized from his home. On November 29, 1999, the County Court held a suppression hearing. On March 3, 2000, the County Court denied the suppression motion in a written decision. See id. at 6-8. The County Court found that Petitioner's statements to Deputy Sheriff Dispenza "were not the result of any police questioning and were not made while [Petitioner] was in custody." See id. at 7-8.
The record reflects that Petitioner was present at the November 29, 1999 hearing. See Suppression Hearing Transcript ("Suppression Hearing Tr.") at 1. The parties discussed whether a Ventimiglia*fn3 hearing was necessary. See id. at 8-10. The County Court reserved decision on that issue for "the time of trial." See id. at 10.
On March 8, 2000, the County Court conducted a pre-voir dire conference. The record reflects that Petitioner was present at that conference. See Tr. at 1. One reason for the conference was to conduct a Ventimiglia hearing regarding evidence of Petitioner's extramarital affairs to prove "intent, motive and to make a complete picture, a complete presentation of the relationship between [Petitioner] and the victim and the surrounding circumstances of what happened in this case." See id. at 3-4. The County Court reserved decision, stating that the decision "would depend upon the theory of the defense put forth . . . before the jury and the testimony as it develops during the trial. [The Court's] inclination is not to sidetrack the trial with extramarital affairs. However, if the defendant opens the door and [the extra marital affairs] become relative [sic] to motive or design under Molineaux,*fn4 [the Court] think[s] . . . [it] will have to conduct a Molineaux hearing." See id. at 8-9. At the conclusion of the pre-voir dire conference, the County Court asked counsel to "take your positions in the courtroom." The record then states that "[t]he following proceedings were conducted in open court." Those proceedings began with the court greeting the potential jurors before beginning voir dire. See id. at 26-27.
Trial commenced on March 9, 2000. In his opening statement, the District Attorney stated that "in the course of their marriage [Petitioner] cheated, let's say 1989, some other times, and [the victim] insisted on working out the marriage, continuing the marriage." See Tr. at 173. Defense counsel did not object.
Petitioner's trial theory was that he never intended to kill the victim. Rather, he intended to scare her so much that she would hate him and grant him a divorce. See id. at 708. Defense counsel presented this theory beginning with his opening statement, in which he referred to Petitioner as the "pinnacle" of a love triangle that included the victim and Kathy. See id. at 185. As part of this presentation, defense counsel informed the jurors that they would "hear stories of [Petitioner's] unfaithfulness to [the victim]." See id. at 187.
The jurors did, indeed, hear such stories. On direct examination of the victim, the District Attorney inquired about Petitioner's 1989 affair with a woman named Shannon. See id. at 271-72. Defense counsel did not object. The District Attorney also asked the victim about Petitioner's relationship with Kathy. See id. at 323-25. Defendant counsel did not object. In fact, defense counsel delved further into the topic by cross-examining the victim about Petitioner's affairs with Shannon, see id. at 350, and Kathy, see id. at 362-64.
Defense counsel explored the topic further when Petitioner took the stand in his own defense, questioning him about both affairs. See id. at 501-502, 503, 507-508, 512, 529, 550. Defense counsel raised no objection to the introduction of evidence regarding Petitioner's infidelities until the prosecutor asked Petitioner on cross-examination whether he had had affairs with women other than Shannon and Kathy. At that point, the court cut off questioning. See id. at 569. Later, when the prosecutor asked Petitioner whether he had contacted Shannon in the mid-1990s "wanting to get back together with her," the court excused the jury for lunch. See id. at 582-83. Addressing counsel, the court stated that "we are getting into the area now of cross examination by way of certain alleged Ventimiglia misconduct, is that correct?" See id. at 583. Defense counsel objected to the prosecutor's line of questioning regarding "involvement with Shannon while Kathy is giving birth while he is married to" the victim. See id. at 584. The court stated that the prosecutor was "getting into matters that are going to be confusing and misleading to the jury" and that any further questioning would be "a marginal area of credibility." See id. at 585-86. The prosecutor did not pursue the line of questioning regarding Shannon after the court's ruling, although he did question Petitioner further regarding his relationship with Kathy. See id. at 591-93. Defense counsel objected to the first of this line of questions -- "What would you pinky swear with your daughter about?"*fn5 -- but did not object to any of the questions that followed.
At the close of the evidence, defense counsel requested a jury charge on renunciation. Upon the prosecutor's consent, the court agreed to present a renunciation charge. See Tr. at 666-70.
In closing, defense counsel argued that Petitioner never intended to kill the victim. Rather, he intended to tell her that their marriage was over in a way "so horrific that he could never be forgiven." See id. at 701-02. To the contrary, the prosecutor argued that Petitioner intended to kill the victim. See id. at 711-744.
Regarding renunciation, the court instructed the jury as follows:
As a first element the defendant must prove that his renunciation was voluntary and complete . . .
As a second element the defendant must prove that he by his own conduct made a substantial and successful effort to prevent the commission of the Attempted Murder in the Second Degree.*fn6 For the defendant's efforts to be substantial they must be sincerely, conscientiously exerted and, most important, be of a convincing nature. To be a successful effort, it must have been the sole and motivating consideration or reason for abandoning all further efforts and intention to commit the attempted murder.
Whether or not the defendant's effort[s] were voluntary and complete and whether or not he made a substantial and successful effort to prevent the commission of the crime, are both questions of fact for you, the jury, to decide.
In summary, in order to prove the defense of renunciation, the defendant is required to prove to your satisfaction by a preponderance of the credible evidence as I have defined that term to you both of the following two essential elements:
1. That prior to the commission of any Attempted Murder in the Second Degree the defendant voluntarily and completely renounced all intention and purpose to continue with the commission ...