at the time of either Mercer’s trial, in 1987, or his direct appeal, in 1989, been held unconstitutional by either New York state or the federal courts. See Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994) (citing Cage, supra, in support of statement that “[i]n only one case have we held that a definition of reasonable doubt violated the Due Process Clause.”). However, whether an accused’s trial counsel has provided effective assistance must be considered based upon the prevailing law at the time of the challenged representation. See Strickland, supra, at 690, 104 S.Ct. 2052 (“strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable”); Jameson v. Coughlin, 22 F.3d 427, 429 (2d Cir.1994) (<HOLDING>); United States v. Javino, 960 F.2d 1137, 1146
holding counsels failure to object to victim impact testimony and evidence was not ineffective assistance of counsel when the trial record was silent as to counsels strategy holding that counsels appellate strategy was reasonable given relevant new york supreme court appellate division precedents at the time of the appeal as a court must judge the reasonableness of the counsels challenged conduct on the facts ofthe particular case viewed as of the time of counsels conduct  and quoting strickland supra at 690 104 sct 2052 holding that a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight to reconstruct the circumstances of counsels challenged conduct and to evaluate the conduct from counsels perspective at the time recognizing that defendant must show 1 that counsels performance was deficient and 2 that counsels errors prejudiced the defense holding that the court of appeals in applying state law on appeal of a diversity action must apply law of the state as it existed at the time of its decision rather than as it stood at the time the case was decided in district court