updated 2/9/2004 12:42:43 PM ET 2004-02-09T17:42:43

The defense for former Tyco International CEO L. Dennis Kozlowski may rest without calling any witnesses, but his codefendant, former CFO Mark Swartz, is expected to testify, Kozlowski's lawyer said Monday.

The trial, at Manhattan's state Supreme Court, was postponed until Tuesday because Kozlowski was undergoing X-rays for torn ankle ligaments suffered during a fall.

Stephen Kaufman, the lead lawyer for Kozlowski, said outside court that his team had no intention of calling witnesses and was considering resting its case on Tuesday.

However, "It is clear that Swartz will testify," said Kaufman.

Swartz's lawyer, who left the courthouse, could not immediately be reached for comment.

When asked if he thinks the testimony of Swartz, the company's former chief financial officer, would help both defendants, Kaufman replied, "We don't know. We'll listen."

Asked what would happen if Swartz's testimony damaged Kozlowski's case, Kaufman replied, "We get to cross-examine Mr. Swartz as well."

The judge excused the jurors for the day, telling them Kozlowski had been injured over the weekend. The lawyer said later that Kozlowski was hurt as he left a restaurant Friday night. On Sunday night, Kozlowski walked half a block and collapsed, then went to a doctor.

Last week, Justice Michael Obus rejected defense motions to declare a mistrial or dismiss all the charges.

Kozlowski, 57, and Swartz, 43, are in the fifth month of a trial on charges of grand larceny, enterprise corruption, state business law violations and falsifying business records. They are accused of stealing $600 million from the company.

Prosecutors say the two stole $170 million by hiding unauthorized pay and secretly forgiven loans in major Tyco transactions and made another $430 million on their Tyco shares by lying about the company's financial condition from 1995 into 2002.

Defense lawyers say Kozlowski and Swartz earned all the benefits they got from Tyco and that all the appropriate overseers knew about their compensation and loans.

The prosecution rested last week.

The judge said prosecutors presented enough evidence that the defendants intentionally looted Tyco and tried to cover up their crimes to let the jury deliberate on the charges.

However, the judge said he would rule later, perhaps just before the jury begins deliberations, on dismissing the top count, enterprise corruption. If convicted on that charge alone, the defendants each would face up to 25 years in prison.

The enterprise corruption charge, which describes a group with a "continuity of existence, structure and criminal purpose," is usually aimed at organized crime.

The judge said he would reserve decision on three counts in which Kozlowski is accused of stealing three pieces of art worth a total of $14.7 million.

Copyright 2004 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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