Section 58 provides that the Magistrate must adjourn a case for not less than 5 and not more than 10 days if the defendant requests the presentation of the charge to the Grand Jury, in order to allow the defendant to procure a section 57 certificate. In People ex rel. Kohut v. Hendrickson ( 249 App. Div. 528, affd. 276 N.Y. 563), the Second Department held that only the accused and not the District Attorney could apply for the section 57 certificate and thus divest the Special Sessions of jurisdiction. Section 59 provides that the presentment of an indictment by a Grand Jury shall divest Courts of Special Session, Police Courts and City Courts of jurisdiction over a misdemeanor.
( People ex rel. Perry v. Gillette, 200 N.Y. 275. See People ex rel. Kohut v. Hendrickson, 249 App. Div. 528; affd., 276 N.Y. 563.) The relator could have also proceeded by demurrer.
The certificate of removal may be issued only upon the application of the defendant. On facts identical in principle with those in this case, where an unauthorized removal was thus effected, habeas corpus issued and the defendant was discharged ( People ex rel. Kohut v. Hendrickson, 249 App. Div. 528; affd., 276 N.Y. 563). In the case at bar no resort was had to any statutory method of removal, but the Attorney-General simply "determined" on the removal.