Should the wounds Officer Russel Timoshenko suffered on Monday prove fatal, his death could set off a jurisdictional dance between state and federal prosecutors over whether his shooter faces the death penalty.

New York State has not had a death penalty statute for more than three years, and the shooting prompted Rep. Vito Fossella, of Staten Island, to write yesterday to the speaker of the state Assembly, Sheldon Silver, calling on him to convene a special legislative session to pass a capital punishment law.

The absence of such a state law has not meant the end of the death penalty in New York. With increasing frequency, a local federal prosecutor, the U.S. attorney in Brooklyn, has been bringing capital cases. In Brooklyn, where Officer Timoshenko and Officer Herman Yan were shot, federal prosecutors have asked juries in three separate cases in the past year to deliver death sentences.

State and federal officials said yesterday that there were no current plans for the Justice Department to bring death penalty charges should the officer die. The case is being handled by the Brooklyn district attorney, Charles Hynes, who has so far charged one of three suspects.
“It’s highly unlikely that this is going to become a federal case,” a Justice Department official who requested anonymity said. “It’s a solid state case. Nicely packaged, and tightly wrapped. I would see no reason why it would go federal at this point.”

Mr. Hynes’s spokesman, Jerry Schmetterer, said: “This case is being investigated and will be prosecuted by the Brooklyn district attorney.”
Brooklyn’s U.S. attorney, Roslynn Mauskopf, did once take over a local case involving the shooting deaths of two police detectives.

After the state’s highest court invalidated New York’s death penalty statute in 2004, Ms. Mauskopf sought capital charges against the man who murdered two officers in Staten Island in 2003, Ronell Wilson. Wilson, who was sentenced to death this year, had already been charged in state court. The move was for the purpose of seeking a death sentence.

The lead trial attorney for Wilson, Ephraim Savitt, said federal prosecutors could conceivably pursue the same strategy in Monday’s shootings as they did in the Wilson case.

“I’m hoping that this officer survives, but if, God forbid, he doesn’t, I predict the U.S. attorney’s office will step right in,” Mr. Savitt said of Officer Timoshenko.

Not all crimes suit themselves to federal prosecutions. The Wilson death penalty prosecution transferred cleanly to federal court because the defendant, a member of a street gang, committed the murders during a gun deal. The case was brought under a federal racketeering law.

Whether the shootings of officers Timoshenko and Yan violated federal law could pose a harder question to the federal prosecutors who will examine the case.

The violence happened during a routine traffic stop in the Prospect Lefferts Gardens section of the borough, when the two uniformed officers pulled over a BMW whose tags did not match the vehicle. Officer Yan, who was shot twice, is expected to recover fully. Officer Timoshenko, paralyzed and unable to breathe on his own, is clinging to life.

The prosecution could conceivably end up in federal court, Mr. Savitt said, because the shootings were intended to obstruct justice — that is, to prevent the officers from discovering criminal activity among the BMW’s occupants during the traffic stop. Even the illegal possession of guns by the suspects used in the shootings could be grounds for federal jurisdiction, Mr.Savitt said.

Another death penalty expert, David Bruck, said the crime probably would not trigger federal jurisdiction.

“Not all gun crimes are federal crimes,” Mr. Bruck, a law professor at Washington and Lee University, said. “Federal law does now reach further than it ever did before, but it doesn’t reach that far.”

Ms. Mauskopf has been nominated for a federal judgeship, but her confirmation has been delayed due to questions about her aggressive death penalty record raised by an opponent of capital punishment, Senator Feingold of Wisconsin.