- Court
- New York Supreme Court, Appellate Division, Second Department
- Case
- People v. Gjurashaj
- Docket
- 2023-03675
- Filed
- May 27, 2026
- Slip Op
- 2026 NY Slip Op 03320
- Citation
- 2026 NY Slip Op 03320 (N.Y. App. Div. 2d Dep’t 2026)
Background
On September 6, 2017, a restaurant owned by Zef Gjurashaj was destroyed in a fire. In December 2021, Gjurashaj and a codefendant, Marina Gjusharaj, were indicted for arson in the first degree and related charges. The prosecution alleged that the defendant and Marina conspired to intentionally set fire to the restaurant with the expectation of collecting insurance proceeds. Critically, the indictment alleged that the defendant’s wife — who was not a participant in the arson conspiracy — was present at the restaurant at the time of the fire, and that the defendant and Marina knew of her presence or that circumstances made her presence a reasonable possibility.
Following a jury trial, Gjurashaj was convicted of arson in the first degree, conspiracy in the second degree, two counts of reckless endangerment in the first degree, insurance fraud in the second degree, and criminal tax fraud in the fifth degree. He appealed, challenging the jury instructions, the legal sufficiency of the evidence, and prosecutorial misconduct.
Holding
The Appellate Division, Second Department affirmed the judgment in all respects. The court addressed several preservation issues, finding that the defendant’s challenge to the jury charge on arson was unpreserved because defense counsel had affirmatively stated no objection, and that the challenge to the sufficiency of evidence regarding the defendant’s awareness of his wife’s presence was unpreserved because the trial motion was not directed at that specific deficiency.
However, the court addressed on the merits the defendant’s preserved claim that the evidence was legally insufficient to prove his wife was not a participant in the arson — an element of first-degree arson under Penal Law § 150.20. Viewing the evidence in the light most favorable to the prosecution, the court found the evidence sufficient to establish that the defendant’s wife was not a participant in the crime. The court also conducted an independent weight-of-the-evidence review and found the verdict was not against the weight of the evidence, noting that the jury was “justified in finding the defendant guilty beyond a reasonable doubt without engaging in the selective dissection of the integrated testimony of a single witness.”
Takeaways
This case illustrates the specific elements required for a first-degree arson prosecution where a non-participant is endangered. The prosecution must establish not only that the fire was intentionally set and that the defendant acted with the expectation of financial advantage, but also that a person who was not a participant in the crime was present in the building, and that the defendant knew of that person’s presence or that circumstances made the presence a reasonable possibility. Each element must be proved beyond a reasonable doubt.
The preservation analysis is also instructive. The failure to object specifically to jury charges or to direct trial motions at the precise deficiency being argued on appeal will result in forfeiture of the claim. Defense counsel must make specific, contemporaneous objections to preserve issues for appellate review.
Why It Matters
For prosecutors handling arson-for-profit cases, this decision provides a roadmap for proving the elements of first-degree arson when a non-participant — often a family member — is endangered by the fire. The proof must encompass not just the intentional nature of the fire and the financial motive, but also the defendant’s knowledge of the innocent person’s presence. For defense attorneys, the case highlights the critical importance of preservation — several potentially meritorious arguments were foreclosed because they were not properly raised at trial.