Under the Miranda ruling, the prosecution may not use statements stemming from custodial interrogation of a defendant unless it demonstrates that the procedural safeguards required by that decision, the familiar fourfold warnings, have first been administered to the defendant to secure his privilege against self incrimination (Miranda v Arizona, 384 US 436; and see Orozco v Texas, 394 US 324). Beyond question a defendant confronted by two police officers with drawn weapons is in custody (People v Shivers, 21 NY2d 118; People v Cesare, 55 AD2d 959), and thus the statements elicited from this defendant and the gun discovered as a result of repeated police questioning of him prior to any Miranda warnings should have been suppressed.
The People contend that the statements were admissible under recent rulings of the Court of Appeals (see People v Huffman, 41 NY2d 29; People v Greer, 42 NY2d 170). In the cited cases, defendant’s statements were volunteered, extemporaneous, or the response to limited inquiry when the police inadvertently came upon the scene of a suspected night street crime. In this case the police were responding, after the fact, to an anonymous telephone call reporting a man with a gun in the vicinity of the intersection of North Union and Weld Streets. They proceeded to the scene, entered a private apartment with shotgun and revolver drawn and interrogated a man awakened from sleep. Inculpatory evidence was obtained from him only after repeated questioning and after a search of the bedroom had failed to produce the suspected gun. Undoubtedly the police had the duty to investigate the complaint and the right to protect themselves in doing so, but their custodial interrogation violated defendant’s constitutional rights and the evidence should have been suppressed (see People v Johnson, 64 AD2d 907, 911).
Furthermore, the inquiry was not permissible under common-law rules or stop and frisk statutes because it occurred in a private apartment (cf. Terry v Ohio, 392 US 1; CPL 140.50), while the defendant was in custody (cf. Matter of Kwok T, 43 NY2d 213) and went beyond a threshold-type inquiry (cf. People v Huffman, supra, pp 31-33).
*481Statements obtained from the defendant in the station house less than an hour later also should have been suppressed because they were the product of the prior illegal police activity (People v Stewart, 41 NY2d 65; and cf. People v Martinez, 37 NY2d 662).
The judgment should be reversed, the motion to suppress granted and the indictment dismissed.
Moule, J. P., and Hancock, Jr., J. concur with Dillon, J.; Cardamons and Simons, JJ., dissent and vote to reverse the judgment and dismiss the indictment in an opinion by Simons, J.
Judgment affirmed.